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HARVARD \mutux 




c 



REPORTS OF CASES 

ARGUED AND DETERMINED 



IN TUB 



SUPREME COURT OF TENNESSEE 



FOWL THX 



WESTERN DIVISION. 

APRIL TBRM, IftT 

AND 

SPECIAL SBPTBMBBR TBRM, 1997. 



EASTERN DIVISION 

SBPTBMBBR TBRM, I907. 



CHARLES T. GATES, JR. 

ATTORMEY-GBNBRAL AND RBPORTBR. 



VOL. XL 



B. W. STBPHBNS. PUBLISHBR, 

COLUMBIA, MISSOURL 

1906. 



Entered according to the Act of Congress, by 

B. W. STEPHENS, 

At the office of the Librarian of Congress, 1908. 



:-» ^^ 1 n 



.JU'-- 



JUDGES OF THE SUPREME COUBT 

OP TENNESSEE. 



8TATB AT LABOB. 


T7. K. MoALISTER, 
M- M. NEIL. 


WB8TKBN DIYISIOV. 

W. D. BEABD, Oh. J. 


lODDLB DIYIfilOH. . ^ 



JOHN 8. WILKES. 

BAflTBBH DIVI8I01I* 

JOHN E. SHIELDS. 



ATT0BH>T-OB!intA.L AlID BSPOBTCB 

CHABLES T. GATES, JR., 
Enozville, Teno, 



COURT OF CIVIL APPEALS 

OF TENNESSEE. 



EASTBBK BIVIBIOK. 

K. M. BARTON, JR. 

HIDDUe Divisioir. 
S. F. WILSON. 

WX8TEBH DIYISION. 

JOHN M. TAYLOR. 

STATB AT LABOE. 

A. B. LAMB. 
H. £. PALMER. 

(HI) 



CLERKS OF THE SUPKEME COUKT 

OF TENNESSEE. 



S. E. CLEAGE 
JOE J. ROACH . 
JNO. W. BUFORD 



Enoxvillb 
Nashville 
Jackson 



CHANCELLOKS 

OF TENNESSEE. 



Hal H. Hatnes, 
H. Gt. Kyle, 

T. M. McCONNELL, 

•D. L. Lansden, 
W. S. Beabden, 
J. W. Stout, 
John Allison, 

E. L. Bullock, 
John S. Coopeb, 

F. H. Heiskell, 

•Holds Ciicuit Court of Fenui 



1st Division 
2Dd Division 
3rd Division 
4th Division 
5th Division 
6th Division 
7th Division 
8th Division 
9th Division 
10th Division 

County. 



Bristol 

Rogersville 

Chattanooga 

Cookeville 

Shelbyville 

Cumberland City 

Nashville 

Jackson 

Trenton 

Memphis 



(IV) 



/^ 



CIRCUIT JUDGES 

OF TENNESSEE 



A. J. Tyleb 

G. Mc. Hendebson 

'Jos. W, 8NEED 

Geo. L. Bubke 
C. £. Snodgbass 
M. M. Allison 
Joe. C. Hiooins 
Jno. E. Kighabdson 

B. D. Bell 

Jno. W. Ghildbess 
J. A. Cabtwbight 
Samuel Holding 
Levi 8. Woods 
Jno. R. Bond 
Jos. E. Jones 
J. P. Young 
Walteb Malone 
Alfbed B. Pittman 
H. W. Laughlin 

S. J. EVEBETT 



Ist Circuit 

2Dd Circuit 

3rd Circuit 

4th Circuit 

5th Circuit 

(>th Circuit 

7th Circuit 

8th Circuit 

9th Circuit 

10th Circuit 

2iid Circuit 

11th Circuit 

12th Circuit 

13th Circuit 

14th Circuit 

15th Circuit 

15th Circuit 

15th Circuit 

15th Circuit 

16th Circuit 



Bristol ^ 
Butledge 
Enoxville 
Kingston 
Crossville 
Chattanooga 
Fayetteville 
Murfreesboro 
Gallatin 
Nashville 

Court Nashville 
Colum^ ia 
Lexington 
Brownsville 
Dresden 
Memphis 

2d Div., Memphis 
3d Div., Memphis 

4th Div., Memphis 
Jackson 



CRIMINAL JUDGES 

OF TENNESSEE . 



Wm. M. Habt, for Davidson 
Jno. T. Moss, for Shelby . . . 
Chas. W. Tyleb, for Montgomery 
S. D. MoBeynolds, for 6th Circuit 
D. D. Andebson . . . 



Nashville 

Memphis 

Clarksville 

Chattanooga 

Knoxville 



i Holds Chancery Court of Knox County. 

(V) 



ATTORNEYS-GENERAL 

OF TENNESSEE 



Dana Harmon 
W. H, Buttham 
Reuben L. Gates 

A. J. Fletcher 
W. R. Officer 
M. N. Whitaker 
W, W. Fairbanks 
W. S. Faulkner 
RoBT. L. Peck 

F. M. Bass 
J. B. Garner 

B. J. Howard 
W. W. Wade 
D, Jk Caldwell 
Geo, S. Yerger 
Jno. a. Tipton 
Jno. L. Neele\', for 



1st Circuit 
2d Circuit 
3rd Circuit 
4th Circuit 
5th Circuit 
6th Circuit 
7th Circuit 
8th Circuit 
9th Circuit 
10th Circuit 
11th Circuit 
12th Circuit 
13th Circuit 
14th Circuit 
15th Circuit 
16th Circuit 
Williamson County, 



Greeneville 

Huntsville 

Enoxville 

Cleveland 

Livingston 

Winchester 

McMinnville 

Lebanon 

Springfield 

Nashville 

Lawrenceburg 

Jackson 

Trenton 

Union City 

Memphis 

Covington 

Franklin 



ASSISTANTS TO ATTORNEY-GENERAL 
AND REPORTER 

OF TENNESSEE. 



Walter W. Faw, 
Robert T. Shannon, 



Franklin, Tenn. 
Nashville, Tenn. 



ASSISTANTS TO ATTORNEYS-GENERAL 

OF TENNESSEE. 
M. G.Lyle, for Montgomery County . . Clarksville 
J. Washington Moore, for Davidson County, Nashville 
E. S. Daniels, for Hamilton County . . Chattanooga 
A. H. Kortreoht, for Shelby County . . Memphis 

(VI) 



CASES REPORTED. 



Anen, McMinn County ▼ S95 

Atkins ▼. State 458 

Ayen, Rogers v. 340 

D 

Bank ▼. Hays 7W 

Banking Co. y. Hall 648 

Bickley, Railroad v ., 528 

Box Co. V. Ch'egory 587 

Bridge Co. y. Grlszle 683 

Brown v. Sams 677 

Bryan ▼. Railroad 349 

Burrow, State, ex rel., v 376 

Byrne, Railroad ▼ 278 

C 

Canada, Grler v 17 

Casualty Co., Patton v 864 

Cissna, Stockley ▼ 136 

Clapp, Price ▼ 426 

Cross T. Keathley 667 



-^ca^^^••---^^"^^"" "^ F 



Finley ▼. Furniture Co 688 

Furniture Co., Finley ▼ 698 

C 

Gass, Knoxville v 438 

Godsey, Humphrey v 48 

Gregory, Box Co. v 537 

Grier v. Canada 17 

Grizzle, Bridge Co. v 683 

|] 

Hall, Banking Co. v 648 

Hays, Bank v 729 

Holder ▼. State 178 

Humphrey v. Godsey 43 

Hurd T. State.'. .* 683 



11 Gates] (vii) 



viii OASES REPORTED. [119 Tenn. 

' V 

Insurance Co., Johnson v 598 

J. 
Johnson y. Insurance Co 598 

K 

Keathley, Cross v 567 

Knoxville v. Gass 4C8 

L 

Lancaster, State v 638 

Lattimore, Smoky Mountain, etc., Co. v 620 

Leaser, Railroad v 1 

LuttreU v. Railroad 492 

M 

ICcMinn County t. Allen 395 

Moore v. Railroad 710 

N 

Norman v. Railroad 401 

P 

Patton V. Casualty Co 364 

Price V. Clapp 425 

Pulp Co., State v 47 

R 

Railroad, Bryan ▼ 349 

Railroad, LuttreU v 492 

Railroad, Moore v 710 

Railroad, Norman v 401 

Railroad v. Bickley 528 

Railroad v. Byrne 278 

Railroad v. Leaser 1 

Rogers v. Ayers 340 

S. 

Sams, Brown v 677 

Smith. State v 521 

Smoky Mountain, etc., Co. v. Lattimorc 620 

State, ex rel., v. Burrow. 376 

State, Atkins y 458 

State, Holder y 178 



11 Gates] CASES BFPOBTED. ix 

state. Hard T. 5SS 

State t. Lancaster 6S8 

State T, Pulp Co. 47 

State V. Smith 621 

State, ex rel., v. Taylor 2S$ 

SUte, Turner v 6eS 

Stockley v. Clasna 116 

T 

Taylor, State, ex reL, v 22$ 

Tamer y. State 6#2 



CASES CITED. 



A 

Abbott, Turner v., 116 Tenn., 718 606 

Alger, Keith v.. 114 Tenn., 1 651 

Algood, State v., 87 Tenn., 163 309 

Allen, State v., 2 Tenn. Ch., 42 646 

AUey ▼. Lanier. 1 Cold., 541 508 

Alsup, Carroll v., 107 Tenn., 266 446,635 

Arbuckle, Borches v., Ill Tenn., 498 149 

August V. Seeskind, 6 Cold., 173 v 506 

Avant, Bennett v., 2 Sneed, 152 354 



Badouz, Taylor v., 92 Tenn., 251 362 

Baker v. Shy. 9 Helsk., 91 • • 646 

Balch, Crocker v.. 104 Tenn., 6 654 

Baldridge. Fisher v.. 91 Tenn.. 418 315.681 

Bank. Kirkman v., 2 Cold., 403 738 

Bank, State v., 5 Sneed. 573 320 

Bank, State v., 96 Tenn., 595 727 

Bank y. Cooper, 2 Yerg., 603 330 

Bank y. Johnson, 105 Tenn., 521 565 

Bank 7. Nelson, 3 Head, 635 654 

Bank v. Smith, 110 Tenn., 337 151 

Barnes v. Thompson. 2 Swan, 215 508 

Barrel, Curie v., 2 Sneed. 66 168 

Bartlett. Saunders v.. 12 Heisk., 316 739 

Bate, Nichol v., 10 Yerg.. 429 565 

Baxter. Saunders v.. 6 Heisk.. 384 433 

Beal. Bruce v., 99 Tenn., 304 692 

Bean. Railroad v., 94 Tenn., 388 6 

Bell, FaYnsworth v., 5 Sneed, 532 359 

Bender v. Montgomery, 8 Lea, 586 605 

Bennett v. Ayant, 2 Sneed, 152 354 

Bennett y. State, M. & Y., 133 479 

Blakemore y. Wood, 3 Sneed, 474 606 

Blanchard. Thompson y.. 2 I/oa. 528 • • 727 

Blaufeld y. Stajte. 103 Tenn.. 593 315 

Bonner, Townsend y., 1 Tenn. Cas., 198 654 

Borches y. Arbuckle, 111 Tenn., 498 149 

Bowers. Morriss Bros, y., 105 Tenn., 64 692 

Bowers y. McGayock, 114 Tenn., 438 654 

Box y. Lanier, 112 Tenn., 393 646 

(x) [119 Tenn. 



11 Gates] CASES CITEID. xi 

Bradley, StaUcap y^ 8 Cold., 407 680 

Bradt, State v., 108 Tenn., 601 200 

Branham y. Turnpike Co., 1 Lea, 704 78 

Bratton v. State, 10 Humph., 108 675 

Brewing Co., State, ex rel., y., 104 Tenn., 718 800 

Brewster v. Galloway, 4 X-ea, 567 151 

Brice, JohiuKm y., 112 Tenn., 50 880 

Bridges t. Robinson, 2 Tenn. Ch., 728 606 

Brien, Garretaon v., 8 Heisk., 634 646 

Brisooe ▼. McMillan, 117 Tenn., 115 620 

Briscoe v. Vanghn, 108 Tenn., 811 41 

Brown, State v., 108 Tenn., 454 800, 458 

Brown, Traction Co. v., 115 Tenn., 329 422 

Brown ▼. Brown, 14 Lea, 253 20 

Brown v. Electric Co., 101 Tenn., 252 541 

Brown ▼. Hamlett, 8 Lea, 785 880 

Brown ▼. Johnson, 1 Htlmph., 262 170 

Bmce V. Beal. 90 Tenn., 804.... 602 

Bryan v. Hunt, 4 Sneed, 544 606 

Bryan ▼. Zarecor, 112 Tenn., 611 507 

Buchanan, Ridley ▼., 2 Swan, 559 724 

Burrow t. Ragland, 6 Humph., 481 654 

Bumis, Elder ▼., 6 Humph., 358 167 

C 

Caldwell, Hodson V., 1 Lea, 50 727 

Calloway, Hopkins t., 8 Sneed, 11 170 

Campb^ T. XTpshaw, 7 Humph., 185 605 

Cannon ▼. Mathes, 8 H^sk., 516 287, 386, 444 

Cargle y. Railroad, 7 Lea, 719 16 

Carpenter y. Lee, 5 Yerg., 266...... i.. ,485 

Carrigan y. Rowell, 96 Tenn., 185 , 40 

Carroll y. Alsup, 107 Tenn., 266 446; 685 

Carson, Cowan y., 101 Tenn., 523 .....;. 40 

Cartwright y. State, 8 Lea, 376..... 489 

Carwell, Grotenkemper y., 4 Lea, 375 727 

Catham y. Stete, 2 Head, 553 646 

Catlett, Whaley y., 103 Tenn.. 347 ^3 

Charlton, Parchman y., 1 Cold., 880.. •-* ;W^ 

Chattanooga y. Keith, 115 Tenn., 589 •v?J^^ 

Chestnut y. McBride, 6 Baxt, 95 .321 

Chilton Y. Scruggs, 5 Lea, 318 . .. ,36 

Clark's Lessee, Stuart y., 2 Swan, 10 167 

Cllft, Parkes y.. 9 Lea, 524 727 

dowers Y. Sawyers, 1 Head, 157 ,(580 

Coal ft Iron Co., Smith y., 115 Tenn.. 543 ill 



xii CASES CITED. [119 Tenn. 

Coile T. Hudgins, 109 Tenn., 220 iO 

Condon v. Maloney, 108 Tenn., 83 447 

Conlee. Miller t., 6 Sneed, 432 820 

Conrad, Williams t., 11 Humph., 412 860 

Cooler T. State, 2 Head, 606 86 

Cooper, Bank v., 2 Yerg., 608 880 

Copper Co., Swain v.. Ill Tenn., 483 721 

Corbitt y. Smith A Co., 101 Tenn., 868 641 

Cornick t. Richards, 8 Lea, 26 788 

Comwell ▼. Comwell, 11 Humph., 486 664 

Comwell V. State. M. A Y., 147 470 

Cotton Mills, Ferguson ▼., 106 Tenn., 236 -.641,718 

Cowan V. Carson, 101 Tenn., 623 40 

Cowan V. Murch, 97 Tenn., 690 684 

Cowan V. Walker, 117 Tenn., 135 664 

Cox, Darwin v., 6 Yerg., 267 436 

Crider, Railroad v., 91 Tenn.. 606 263 

Crocker y. Balch, 104 Tenn., 6.' 664 * 

Conninfl^m, Wright y., 116 Tenn., 445 881 

Curie y. Barrel, 2 Sneed, 66 168 

Curry y. Roulstone, 2 Oyert, 110 788 

D 

Dale y. SUte, 10 Yerg.. 551 674 

Darwin v. Cox, 6 Yerg., 267 486 

Dayidson-Benedict Co. y. Seyerson, 109 Tenn., 672 14 

Dayidson y. Phillips, 9 Yerg., 93 170 

Dayis, Shields y., 103 Tenn., 638 829 

Delk y. Yelton, 103 Tenn., 480 40 

Doak, RaUroad y., 116 Tenn.. 720 16 

Dodds y. Duncan, 12 Lea, 731 820 

Doye y. State« 8 Heisk., 366 468 

Duncan, Dodds y., 12 Lea, 731 820 

Dunham y. Harvey, 111 Tenn., 620 87 

Dush y. Fltzhugh, 2 Lea. 307 433 

E 

Bdens, Holbert y., 5 Lea, 204 99 

Edwards, Hancock y., 7 Humph., 349 606 

Edwards y. McConnel, Cooke. 805 161 

Bgerton, Railroad y.. 98 Tenn., 641 642 

Elder y. Burrus, 6 Humph., 368 167 

Electric Co., Brown y., 101 Tenn., 262 641 

Elliott y. Lawless, 6 Heisk., 124 161 

Ellis y. Hamilton, 4 Sneed, 614 606 

EstiU y. Taul, 2 Yerg., 467 161 



11 Gates] CASES GITEID. ziii 

F 

n«aii. Genthn«r t., 85 Tenn., 4»6 S58 

Fallcnr, Iiuaraiice Go. t., 110 Tenn., J720 ^. #20 

ndls, Ifaniifftctiirinff Co. y., 90 Teim., 482 882, 887 

Fmiswortli t. Bell, 6 Sneed, 582 859 

PuTis ▼. Slpes, 99 Teim., 800 40 

Fergnacm t. Cotton Mins. 106 Tenn.. 288 641,718 

FleUe, MoiT^ y., 8 Lea, 81 288, 887 

FleUe, Bute ▼., 8 Lea, 79 451 

Fteher t. Baldridge, 91 Tenn., 418 315, 681 

Flte^ Gold T., 2 Baxt, 249 881 

Fltihngli. DuBh y., 2 Lea, 807 488 

ntxpatrick. Bank y., 4 Homph., 811 854 

Fly, Langford y., 7 Humph., 585 858 

Ford. Patri<dc y., 5 Sneed, 582 ... 869 

Fbwlkee y. State, 14 Lea» 14 727 

. Ftat y. State, 111 Tenn., 168 148 

' Franklin County y. Railroad, 12 Lea, 521 256 

Wanklin, Rntheifcird y., 1 Swan, 822 170 

Fraxior y. Railroad, 88 Tenn.. 158 288 

Freeman y. Fk^eman, 111 Tenn., 161 40 

, Friedlander, PoUock y., 5 Cold., 491 355 

G 

Galbraitk, Jonee y., 59 S. W., 350 470* 

Qanoway, Brewater y., 4 Lea, 567 151 

Galloway y. ICempbii, 116 Tenn., 747 309 

Garreteon y. Brien, 8 Heiak., 584 646 

GaaUn, Murdock y., 8 Bazt, 22 727 

OentLner y. Fagan, 85 Tenn., 495 253 

Gibbs, Moss y., 10 HelslL, 283 109 

' Gibson y. Gibson, 9 Yerg., 332 468 

Gibson y. Lane, 9 Yerg., 475 83 

Godfrey, Hubbard y., 100 Tenn., 150 149 

GiAd y. Flte, 2 Baxt, 249 331 

Goodbar y. Memphis, 118 Tenn., 23 291 

* Goodwin y. Thompson, 15 Lea, 209 99, 167 

^ Gore y. Howard, 94 Tenn., 577.. 654 

Gore, Street Railroad y., 106 Tenn., 390 ; . . . 436 

Oracy, Stewart y., 98 Tenn., 314 633 

^ Green, Iron Co. y., 108 Tenn., 161 705 

i Greenlaw y. Railroad, 114 Tenn., 187 421 

Groiemkemper y. Carwell, 4 Lea, 375 727 

Onion, Harrison y., 4 Lea, 581 654 

Gunnaway, State y., 16 Lea, 124 324 

Guthrie y. Railroad, 11 Lea, 372 •• 692 



xiv OASES CITED. [119 Tenn. 

H 

Hager, Reeves v., 101 Tenn., ;7U ; ........662 

HaUe y. State, 11 Humph., 154. 479 

Halaey, MemphiB v., 12 Helsk., 218 820 

HambTf State, ex rel., t.« 114' Tenn., 868 800, 447 

Hamilton, Bllis v., 4' Sneed, 614 605 

Hamilton t. Zimmerman, 5 . Sneed, 80 86 

Hamlett, Brown y., 8 Lea, 785 880 

Hancock y. Edwards, 7 Humph., 849. 605 

Harmon, Welsh y., 8 Yerg., 103 727 

Harmon y. Tyler, 112 Tenn., 8 830 

Harris y. Taylor, 8 Sneed, 589 856 

Harrison y. Ouion, 4 Lea, 531, 654 

Hanrey, Dunham y., Ill Tenn., 620 87 

Hatcher y. Stato, 12 Lea, 868 880 

•Hkwkes, Ligon y., 110 Tenn., 514 654 

Heald y. Wallace, 109 Tenn., 864, 411 

Hines y. WiUoox, 96 Tenn., 158 604 

Hinkle's Lessee y. Shadden, 2. Swan, 46 646 

•Hinton y. Insurance Ck>^ 110 Tenn., 113 846 

Hodson y. Caldwell, 1 Lea, 50 727 

Holbert y. BSdens, 6 Lea, 204 99 

HoUingsworth, Williams y., 5 Lea, 360 728 

Hopkins y. Calloway, 8 Sneed, 11 170 

Home y. Railroad, 1 Cold., 78 380 

Houston, Russell y., 115 Tenn., 536 41 

Howard, Gore y., 94 Tenn., 577. 654 

Howard, Ragon y., 97 Tenn., 453 508 

Hubbard y. Godfrey, 100 Tenn., 150 149 

Hudgins, Coile y., 109 Tenn., 220 40 

Hundhausen y. Insurance Co., 5 Heisk., 704 ,..,. 821 

Hunt, Bryan y., 4 Sneed, 544 605 

Hunton, Railroad y., 114 Tenn., 609 210 

Hyman y. State, 87 Tenn., 112 289 



Insurance Co., Hinton y., 110 Tenn., 118. . . ., 348 

Insurance Co., Hundhausen y., 5 Heisk., 704 > . 821 

Insurance Co., Stato y., 92 Tenn., 427 881 

Insurance Co., Stewart y^ 9 Lea, 104 604 

Insurance Co. y. Fallow, 110 Tenn., 720 620 

Iron Co. y. Oreen« 108 Tenn., 161 706 

Iron Co. y. Pace, 101 Tenn., 476 541 

lyey, Pinson y., 1 Yerg., 296 646 



11 Gates] CASES CITED. xv 

J 

Jackson r. NImmo, 8 Lea, 597 801 

James^ Posey v., 7 Lea, 98 99, l|7 

Johnson, Bank v., 105 Tenn., 521 5f5' 

Johnson, Brown v., 1 Humph., 262 IfO 

Johnson, Hoore t., 7 Lea, 584 014 

Johnson, Railroad y., 114 Tenn., 682 64$ 

Johnson Y. Brice, 112 Tenn., 59 880 

Jones, RaUroad v., 100 Tenn., 512 485, 72% 

Jonee v. Galhraith, 59 S. W., 850 470 

Justices, Newman t., 1 Heisk., 787 821 

K 

Kay V. Smith, 10 Heisk., 42 508 

Keith, Chattanooga v., 115 Tenn., 587 '821 

Keith V. Alger, 114 Tenn., 1 651 

Keith T. Raglan, 1 Cold., 473 654 

Klmhro v. LyUe, 10 Yerg., 417 565 

Kinn^ t. Railroad, 116 Tenn., 461 428 

Kirkman y. Bank, 2 Cold., 408 788 

Kirkpatrick y. Kirkpatrick, 1 Tenn. Gas.. 258 468 

Klein Y. Kern, 94 Tenn., 34. . ' 663, 606 

L 

Lancaster y. State, 2 Lea, 575 479 

Lane, Gibson y., 9 Yerg., 475 33 

Langford y. Fly, 7 Humph., 585 358 

Lanier. Alley y., 1 Cold., 541 508 

Lanier, Box y., 112 Tenn., 893 646 

Lasater, State y., 9 Baxt, 584 449 

Lee, Carpenter y., 5 Yerg., 266 . . 485 

Leonard, Simmons y., 89 Tenn.. 623 654 

Lewis Y. Small, 117 Tenn., 156 740 

Lewis Y. State, 3 Head, 148 675 

Lewis Y. Tnmley, 97 Tenn., 197 606 

Lieberman, Lumber Co. y., 106 Tenii., 153 354 

LIgon Y. Hawkes, 110 Tenn., 514 654 

Logue, Sanders y., 84 Tenn., 864 360 

LoYo Y. Railroad, 108 Tenn., 125. 14 

Lowry y. Railroad, 117 Tenn., 507, 431 

Lnehrman y. Taxing Dist, 2 Lea, 428 288 

Lumber Co. y. Lieberman, 106 Tenn., 153 854 

Lyons y. 'Stills, 97 Tenn., 514 606 

Lytle. Kimbro y., 10 Yerg., 417. 565 



XVI CASES CITED. [119 Tenn. 

Mc 

McBride, Chestnut t., 6 Bast, 96 S21 

McCampbell y. State, 116. Tenn., 107 315,681 

McCann, State ▼., 4 Lea, 1 387 

McConnel, Edwards v., Cooke, 806 161 

McCrae v. McCrae, 103 Tenn., 721 40 

McDowell y. MorreU, 6 Lea, 278 661 

McElwee y. McElWee, 97 Tenn., 649 297, 449 

Mcdtayock, Bowers y., 114 Tenn., 48 " 664 

McQhee y. Stat6, 2 Lea, 626 33S 

McGulre y. State, 7 Humph., 64 626 

McMUlan. Briscoe y., 117 Tenn,, 116 .... 629 

McMillan, Roberts y., 9 Lea, 678 664 

McMinnyille, State y., 106 Tenn., 384 446 

M 

Malone y. Williams, 118 Tenn., 390 316 

Maloney, Condon y., 108 Tenn., 83 447 

Mansfield y. Northcnt, 112 Tenn., 636 • • 170 

Manufacturing Co. y. Falls, 90 Tenn., '482 292, 387 

Martin y. Nance, 3 Head, 649 99, 167 

Mason, Templeton y., 107 Tenn., 631 367 

Mathes, Cannon y., 8 Heisk., 616 287, 386, 444 

Maupin, Wisener y., 2 Baxt, 367 468, 664 

Memphis, Galloway y., 116 Tenn., 747 309 

Memphis, Ooodbar y., 113 Tenn., 23- • 291 

Memphis y. Halsey, 12 Heisk., 213 320 

li^erchant y. Preston, 1 Lea, 284 362 

B^er y. Conlee, 6 Sneed, 432 '., 320 

Uifier y. Miller, 6 Heisk., 730 654 

If^lLtgomery, Bender y., 8 Lea, 586 606 

Bf^re, Norton y., 3 Head, 4^2 468 

y^re, Oliver y., 12 Heisk., 482 739 

Moore y. Johnson, 7 Lea, 684 664 

Morrell, McDowell y., 6 Lea, 278.. 661 

Morrell y. Fickle, 3 Lea, 79. 288, 387 

Morris Bros. y. Bowers, 106 T^H., 64 692 

Moss y. Gibbs, 10 Heisk., 283r>i 109 

Murch, Cowan y., 97 Tenn., 690 634 

Murdock y. Gasklll, 8 Baxt, 22 : 727 

Myers y. Taylor, 107 Tenn., 364 606 

N 

Nance, MarUn y., 3 Head, 649 99.167 

Nashville, Telephone Co. v.. 118 Tenn., 1 385 



11 Gates] CASES CITED. xvu 

Nelson, Bank t., 8 Head, eS6 €54 

Newman t. Jnatloee, 1 Heisk., 787 881 

Nichol ▼. Bate, 10 Yerg.. 428 666 

Nidurts ▼. Loyd, 111 Tenn.. 146 881 

Nimmo> Jackson y., 8 lisa, 697 801 

Noll ▼. Railroad, 112 Tenn., 140 606 

Norfleet ▼. State, 4 Sneed, 846 478 

Norris, Peeler v., 4 Yerg., 881 727 

Northcat, Mansfield t., 112 Tenn., 636 170 

Norton ▼. Moore, 8 Head, 482 468 

O 

Ochs ▼. Price, 6 Heisk., 487 788 

Oliver v. Moore, 12 Heisk., 482 78d 

P 

Pace, Iron Co. ▼., 101 Tenn., 476 641 

Parchman y. Charlton, 1 Cold., 380 646 

Parker, Robb v., 4 Heisk., 69 857 

Parker v. Porter, 4 Yerger, 81. 854 

Parker y. Savage, 6 Lea, 408 861 

Parkes v. Clift, 9 Lea, 524 727 

Patrick v. Fbrd, 6 Sneed, 632 859 

Peck V. State, 2 Humph., 86 526 

Peeler v. Norris, 4 Yerg., 331 727 

Pennington v. State, 3 Head, 120 526 

Pesterfield v. Vickers, 3 Cold., 216 592 

Phillips, Davidson v., 9 Yerg., 93 170 

Phillips V. Simpson, 2 Head, 480 170 

Pinson y. Ivey, 1 Yerg.. 296 646 

Pirtle V. State, 9 Humph., 663 479 

Pollock, Friedlander v., 6 Cold., 491.. 866 

Pope, Taylor v., 6 Cold., 414 838 

Porter, Parker v., 4 Yerg., 81 354 

Posey V. James, 7 Lea, 98 99, 167 

Poeton, TeL Co. v., 94 Tenn., 698 483 

Powder Co. v. Railroad, 113 Tenn., 392 612 

Prater v. Prater, 87 Tenn., 78 40 

Preston, Merchant v., 1 Lea, 284 362 

Price, Ochs v., 6 Heisk., 487 738 

Pnckett y. State, 1 Sneed, 356 64B 

Pulp Co., State v., 119 Tenn., 47 168 

Puryear v. Reese, 6 Cold., 26 468 

Pyett y. Rhea, 6 Heisk., 137 846 

119 Tenn— B 



xviu CASES CITED. [119 Term. 

Q 

Qulgley T. Shedd, 104 Tenn., 560 606 

R 

Raglan, Keith v., 1 Cold.. 473 654 

Ragland, Burrow v., 6 Humph., 481 654 

Ragon V. Howard, 97 Tenn., 341 508 

Railroad, Cars^e ▼., 7 Lea, 719 16 

Railroad, Franklin County v., 12 Lea, 521 256 

Railroad, Ferguapn v., 88 Tenn., 158 288 

Railroad, Greenlaw v., 114 Tenn., 187 421 

Railroad, Guthrie v.. 11 Lea. 372 692 

Railroad, Home v., 1 Cold., 79 330 

Railroad, Kinney v., 116 Tenn., 451 423 

Railroad, Love v., 108 Tenn., 125 14 

Railroad, Lowry v., 117 Tenn., 507 , 431 

RaUroad, NoD v.. 112 Tenn., 140 505 

Railroad, Powder Co. v. 113 Tenn., 392 512 

Railroad, Saunders ▼., 99 Tenn., 130 222 

Railroad, Tyrus v., 114 Tenn., 593 422 

Railroad, Whitlow v., 114 Tenn., 344 369 

Railroad, Woodruff v., 2 Head, 94 739 

Railroad y. Bean, 94 Tenn., 388 6 

Railroad v. Crider, 91 Tenn., 506 263 

Railroad v. Doak, 116 Tenn., 720 16 

Railroad v. Egerton, 98 Tenn., 541 542 

Railroad t. Hunton, 114 Tenn., 609 210 

Railroad v. Johnson, 114 Tenn., 632 '. . . . 642 

Railroad ▼. Jones, 100 Tenn., 512 4C5, 721 

RaUroad v. Smith, 9 Lea, 685 541 

RaUroad v. Voss, 109 Tenn., 722 143 

Railroad v. Weaver, 9 Lea, 38 531 

Rauscher, State v., 1 Lea, 97. 380 

Refrigerator Co., Steger v., 89 Tenn., 453 508 

Reese^ Puryear v., 6 Cold., 26 468 

Reeves v. Hager, 101 Tenn., 712 652 

Rhea, Pyett v., 6 Heisk., 137 346 

Rhea v. State, 10 Yerg., 258 143 

Rice V. Steger, 3 Tenn. Ch., 328 606 

Richards, Comick v., 3 Lea, 25 738 

Richardson v. Thompson, 1 Humph., 154 606 

Ridley V. Buchanan, 2 Swan, 559 724 

Robb T. Parker, 4 Heisk., 59 •... 367 

Roherte v. McMiUan, 9 Lea, 573 654 

Robinson, Bridges v., 2 Tenn. Ch., 723 *... 606 

Rose V. Wortham, 95 Tenn., 608 331 



11 Gates] CASES CITEID. ziz 

RottlBtoiie, Carrj t., 2 Overt, 110 7S8 

Rowell, Carrigan y., 96 Tenn., 186 40 

Rnssen ▼. Hoaston, 116 Tenn., 586 41 

Rutherford ▼. Franklin, 1 Swan, 322 170 

Bjan ▼. Terminal Ck>., 102 Tenn., 128 306,448 

Sanders y. Logne, 84 Tenn., 364 860 

Sannders t. BarUett, 12 Helsk., 316. 789 

Saonders y. Baxter, 6 Helsk., 384 488 

Sannders v. Railroad, 99 Tenn., 130 222 

Savage, Parker v.« 6 Lea, 408 361 

Sawyers, Glowers v., 1 Head, 167 680 

Scmggs, Chilton v., 6 Lea, 318 86 

Seeskind, August v., 6 Gold., 173 606 

Severson, Davidson-Benedict Co. v., 109 Tenn., 672 14 

Sewell, Weatherhead v., 9 Humph., 272 29 

Shadden, Hinkle's Lessee v., 2 Swan, 46 646 

Shedd, Qnigley v., 104 Tenn., 660 606 

Shields V. Davis, 103 Tenn., 638 329 

Shy, Baker v., 9 Heisk., 91 646 

Simmons v. Leonard, 89 Tenn., 623 664 

SimiMBon, Phillips v., 2 Head, 430 170 

Sipes, Farris v., 99 Tenn., 300 40 

Small, Lewis v., 117 Tenn., 155 740 

Smitb. Bank v., 110 Tenn., 387 161 

Smith, Kay v., 10 Heisk., 42 608 

Smith, Railroad v., 9 Lea, 685 641 

Smith, Vance v., 2 Heisk., 343. 361 

Smith St Co., Corhitt v., 101 Tenn., 368 641 

Smith V. Coal Co., 116 Tenn., 643 411 

Spiers, Wynne v., 7 Humph., 394 664 

StaUcup V. Bradley, 3 Cold., 407 680 

Starks v. State, 7 Baxt, 65 626 

State, Bennett v.. Mart ft T., 183 479 

State, BlanHeld v., 103 Tenn., 693 816 

State, Bratton v., 10 Humph., 108 676 

State, Cartwright v., 8 Lea, 376 479 

State, Catham v., 2 Head, 663 646 

SUte, ComweU v.. Mart ft Y., 147 479 

SUte, Dale v., 10 Yerg., 661 674 

State, Dove v., 3 Helsk., 365 468 

State, Fowlkee v., 14 Lea. 14 727 

State, F6x v., Ill Tenn., 158 143 

State, Halle v., 11 Humph., 154 479 

State, Hatcher v., 12 Lea, 368 380 



XX CASES CITED. [119 Tenn. 

state, Hyman t., 87 Tenn., 112 289 

State, Lancaster t., 2 Lea, 575 479 

State, Lewis v., 3 Head, 148 675 

State, BTcCanipbell v., 116 Tenn., 107 315, 681 

State, McOhee v., 2 Lea, 625 388 

State, McQuire v., 7 Humph., 54 525 

State, Peck v., 2 Humph., 85 525 

State, Pirtle v., 9 Humph., 663 479 

State, Puckett v., 1 Sneed, 355 646 

Stote, Rhea v., 10 Yerg., 258 143 

State, Storks v., 7 Baxt, 65 525 

Stote, Street Railway v., 110 Tenn., 598 524 

Stote, Swan v., 4 Humph., 136 479,674' 

Stote, Truss r., 18 Lea, 312 288 

Stote, Turner v.. Ill Tenn., 607 338 

Stote, Warren v., 4 Cold., 130 673 

Stote, Wilcox v., 94 Tenn., 110 468 

Stote, Williams v., 8 Humph., 585 215 

Stote, Womack v., 6 Lea, 152 143 

Stote, ex rel., v. Brewing Co., 104 Tenn., 718 290 

Stote, ex rel., y. Hamby, 114 Tenn., 363 300, 447 

Stote, ex rel., 't. TeL Co., 114 Tenn., 194 369 

Stote, ex rel., v. Trewhltt, 113 Tenn., 561 257 

Stote T. Algood, 87 Tenn., 163 309 

Stote ▼. Allen, 2 Tenn. Ch., 42 646 

Stote Y. Bank of Tennessee, 5 Sneed, 573. . . 320 

Stote y. Bradt, 103 Tenn., 591 290 

Stote y. Brown, 103 Tenn., 454 300,453 

Stote y. Pickle, 8 Lea, 79 451 

Stote y. Ounnaway, 16 Lea, 124. . .; 320 

Stote y. Insurance Co., 92 Tenn., 427 331 

Stote y. Lasater, 9 Baxt., 584 449 

Stote y. McCann, 4 Lea, 1 387 

Stote y. McMlnnylUe, 106 Tenn., 384 445 

Stote y. Pennington, 8 Head, 120 525 

Stote y. Pulp Co., 119 Tenn., 47- 163 

Stote y. Rauscher, 1 Lea, 97 380 

Stote y. Turnpike Co., 2 Sneed, 89 330 

Stote y. Unknown Heirs, 113 Tenn., 298 647 

Stote y. Wilson. 12 Lea, 246 257 

Stote y. Yardley, 95 Tenn., 558 258, 289, 387, 448 

Steele^ Cooley y., 2 Head, 605 36 

Steger, Rice y., 3 Tenn. Ch,, 328 606 

Steger y. Refrigerator Co., 89 Tenn., 4B3 508 

Stephenson y. Walker, 8 Baxt, 289 36 

Stewart y. Oracey, 93 Tenn., 214 533 



11 Gates] CASES CITED. xxi 

Stewart y. Insarance Co., 9 Lea, 104 iMM 

StiUman ▼. StUIman, 7 Bast, 176 36 

Stffls, ijyaDa v., 97 Tenn., 514 ,••,:,••. ' ^^ 

Street Railway y. Qore, 106 Tenn., S90.. .. \\\''!.'. \ iis 

Street RaUway t. State, 110 Tenn., 598. 5$;4 

Stuart ▼. Clark's Lessee, 2 Swan, 10 ..'.., ^$7 

SatUe, White v.. 1 Swan, 174 ... * l6;l 

Swain ▼. Copper Co., Ill Tenn., 438 73;i 

Swan V. State, 4 Humph., 136. 479, 674 

T 

Tanl. EstiU v., 2 Yerg., 467 151 

Taxlns DIst, Lnehrman t., 2 Lea, 428 288 

Taylor, Harris v., 8 Sneed, 539 356 

Taylor, Meyers v., 107 Tenn., 364 606 

Taylor v. Badoax, 92 Tenn., 251 362 

Taylor ▼. Pope, 5 Cold.. 414. .,.^ 338 

Telephone Co., State, ex rel., v., 114 Tenn., 194 369 

Telephone Co. v. Nashville, 118 Tenn., 1 ., 386 

Telephone Co. t. Poston, 94 Tenn., 698 438 

Templeton v. Mason, 107 Tenn., 631 357 

Terminal Co., Ryan v., 102 Tenn., 128 306,448 

Thomas, Ward t., 2 Cold., 565 321 

Thompson, Goodwin v., 15 Lea, 209 99, 167 

Thompson, BamlM v., 2 Swan, 215 508 

Thompson, Richardson t., 1 Humph., 154 606 

Todd V. Wiley, 3 Humph., 576 143 

Townsend v. Bonner, 1 Tenn. Cas., 198 654' 

Townsend t. Townsend, 4 Cold., 70 33,654 

Traction Co. v. Brown, 115 Tenn., 329 422 

Truss T. State, 13 Lea, 312 288 

Turner v. Ahbott, 116 Tenn«, 718 606 

Turner v. State, 111 Tenn., 607 338 

Turnpike Co., Branham t., 1 Lea, 704 72 

Turnpike Co., State y., 2 Sneed, 89 330 

Tyrus y. Railroad, 114 Tenn., 593 422 

U 

Unknown Heirs, State y., 113 Tenn., 298 646 

Upshaw, Camphell y., 7 Humph., 185 605 

V 

Vance y. Smith, 2 Heisk., 343 ..... 361 

Vaughn, Briscoe y., 108 Tenn., 311 41 

Vickers, Pesterfleld y., 3 Cold., 215 592 

Voss, Railroad y.. 109 Tenn*, 722 143 



xxii CASES CITED. [11» Tenn. 

w 

Walker, Cowan t., 117 Tenn., 186 654 

Walker, Stephenson v., 8 Bazt, 289 86 

WaUace, Heald V., 109 Tenn., 864 411 

Ward v. Thomas, 2 Cold., 666 • • 321 

Warner v. Tates, 118 Tenn., 648. 503 

Warren v. State, 4 Cold., 180 678 

Weatherford v. Sewell, 9 Humph., 272 29 

Weaver, Railroad v., 9 Lea, 88 531 

Welsh V. Harmon, 8 Yerg., 108 727 

Whaley v. CaUett, 108 Tenn.,* 847 18 

White V. Suttle, 1 Swan, 174 161 

WhiUow T. Railroad, 114 Tenn., 344 869 

Wilcox ▼. State, 94 Tenn.. 110 468 

Wllejr, Todd v., 3 Humph., 676 148 

Willcox, Hlnee v., 96 Tenn., 168 604 

Williams, Malone ▼., 118 Tenn^ 890 816 

Williams ▼. State, 8 Humph., 686 216 

Williams y. Wilson. Mart ft T.. 248 646 

WUson, State v.. 12 Lea, 246 267 

Wilson, WUliams t.. Mart ft T.. 248 646 

Wisener v. Maupin, 2 Bazt, 867 468.664 

Womack v. State, 6 Lea, 162 148 

Wood, Blakemore ▼., 3 Sneed, 474 606 

Woodruff y. Railroad, 2 Head, 94 789 

Wortham, Rose y.. 96 Tenn., 608 381 

Wright y. Cunningham, 116 Tenn., 446 331 

Wynne y. Spiers, 7 Humph., 394 664 

Y 

Tardley, State y., 95 Tenn., 568 263, 289, 887. 448 

Yates, Warner y., 118 Tenn., 648 608 

Yelton, Delk y., 103 Tenn., 480 40 

Z 

Zareoor, Bryan y., 112 Tenn., 611 507 

Zimmerman, Hamilton y., 5 Sneed, 89 36 



OTHER STATES. 



ALABAMA. 



Brent t. Mffler, 81 Ala.. 309 Tt7 

Hasaa t. Campbell, 8 Port, 9 106 

Hardware Co. t. McConnel], lOS Ala., 677 60S 

ARKAN8A8. 

Cenni r. State, 40 Ark., 604 72 

Railroad y. Bamsey, 68 Ark., 814 72 

Sbotwell T. State, 43 Ark., 847 626 

CALIFORNIA. 

Cartwright y. Mining Co., 80 Cal., 680 888 

Flail T. Benson, 71 Cal., 429 162 

Larr a be o ▼. CloTerdale, 181 Cal., 96 71 

Lux V. Haggln, 69 Cal., 417 71 

People, ex rel., t. Sansallto, 106 CaL, 600 679 

COLORADO. 

Eatey ▼. Lomber Co., 4 Colo. App., 166 608 

Keady t. People, 66 U R. A., 363 686 

Schmidt T. Bank, 10 Colo. App., 261 788 

CONNECTICUT. 

Fields ▼. Osborne, 60 Conn., 644 680 

State, ez reL, t. Walsh, 62 Conn., 260 680 

DELAWARE. . 

Morris t. Brooke, Del. Common Pleas, July 1816 100 

FLORIDA. 
Tnist Co. Y. Crabb, 46 Fla., 806 848 

GEORGIA. 

Camming y. Wright, 72 Oa., 767 603 

Smith Y. Taylor, 11 Oa., 20 486 

Tritt Y. BlsOb 61 Oa., 494. 887 

TutUe Y. Bank, 90 Ga., 666 788 



11 Gates] (xxiii) 



xxiv CASES CITED. [119 Tenn. 

ILLINOIS. 

Baker t. Young. 44 lU., 42 436 

Burrltt T. CommissionerB. 120 III., 822 8S8 

Buttenuth v. Bridge Co., 128 DL, 535. 84' 

Gale V. Klnzie, 80 lU.. 132 '.. 176 

Riverside Co. v. Townaend/ 120 lU., ,16 161 

Warman v. Bank, 185 m., 60 564 

INDIANA. 

IfitTens T. Insurance Co., Ill Ind., 90 609 

May ▼. Rice, 91 Ind.. 546 388 

IOWA. 

Bridge Co. v. Dubuque, 55 Iowa, 558 72 

Holman v. Hodges, 112 Iowa, 714 99 

Houghton y. Railroad, 47 Iowa, 370 72 

Vredland v, Ellsworth, 71 Iowa, 347 502 

KANSAS. 

Halsey t. Warden, 25 Kan., 128 737 

State V. Baldwin, 36 Kan., 14 225 

KENTUCKY. 

AUnnan y. Commonwealth, 18 S. W., 937 526 

Douglas y. Bank, 86 Ky., 176 736 

pain y. MUes, 60 S. W., 939 152 

Franklin y. Commonwealth, 105 Ky., 237 226 

Robinson y. Myers, 3 Dana, 441 348 

Bwanson y. Smith, 117 Ky., 116 152 

Young y. Commonwealth, 12 Bush., 243 526 

LOUISIANA. 

Hughes y. Bimey, 107 La., 664 .128,176 

Bfyers y. Perry, 1 La. Ann., 372 76 

Railroad y. Tibbs, 112 La., 51 150 

State y. Ames, 23 La. Ann., 69 657 

State y. Land Co., 106 La., 671 374 

State, ex rel., y. Judge, 34 La. Ann., 1177 241 

State, ex rel., y. Judge, 41 La. Ann., 41 251 

Williams y. Manufacturing Co., 52 La. Ann., 1417 372 

MAINE. 

State y. Kingsbury, 58 Me., 238 224 

Thompson y. Oilmore, 50 Me., 435 503 



11 Gates] CASES CITED. xxv 

MARYLAND. 

Coyer t. Myers, 75 Md., 406 560 

McFheracm ▼. Lennard, 29 Md^ 377 S8S 

Railroad t. Wilkena. 44 Md., 11 786 

MA8aACHU8ETT8. 

Academy t. DlekixiBon, 9 Coait^ 544 '. 106 

Anatin t. Wflson, 4 Cush., 278 436 

Bank ▼. Dearborn, 115 Mass., 219 787 

CQmnumwealtti y. Hudson, 77 Mass., 64 887 

Com T. Wood, 111 Mass., 411 226 

HiU T. Duncan, 110 Mass., 238 485 

Johnson ▼. Insurance CSo., 182 Mass., 432 870 

Klmnall ▼. Insurance Co., 9 Allen, 540 606 

Ladd Y. Street RaUway, 180 Mass., 454 719 

Peck Y. Hapgood, 10 Mete., 172 338 

MICHIQAN. 

Benjamin y. RiYor Imp. Co., 42 Mich., 628 71 

Dudley y. Railroad, 65 Mich., 655 514 

Insurance Co. y. Dayenport, 87 Mich., 613 609 

People Y. Dettenhaler, 118 Mich., 596 388 

MINNESOTA. 

Banking Co. y. Zelch, 57 Minn., 487 559 

Sjoberg y. Association, 73 Minn., 703 388 

MISSISSIPPI. 

Morgan y. Reading, 8 Sm. ft M., 388 76 

Oglesby y. Sigman, 58 Miss., 502 578 

Perkins y. Carraway, 69 Miss., 222 •• 578 

Pullman Co. y. Lawrence, 74 Miss., 782 372 

Swann y. Buck, 40 Miss.» 268 388 

Steele y. Calhoun, 61 Miss., 556 578 

Wan Y. Wall, 80 Miss., 91 33 

MISSOURI. 

AshSum Y. Ayers, 28 Mo., 77 503 

Bank y. Homeyer, 45 Mo., 145 737 

City, etc., y. Riley, 52 Mo., 424 388 

Minton Y. Steel, 125 Mo., 181 176 

Murdock Y. milyer, 45 Mo. App., 287 508 

Bees Y. MoDaniel, 115 Mo., 145 109 

Tackett Y. Voglcr, 86 Mo., 480 886 



xxvi OASES CITED- [119 Tenn. 

NEBRASKA. 

Holbrook t. Moore. 4 Neb., 437 109 

Lumber Co. t. RaUroad, 28 Neb., 39 618 

Manck ▼. Brown, 69 Neb., 813 679 

Whitman v. SUte, 17 Neb., 224. 627 

NEVADA. 

Dennis v. Conglin, 22 Nov., 447 679 

State, ex. rel., v. Mnrphy, 19 Nov., 89 260 

State, ex rel., v. Rogers, 10 Nov., 250 888 

State, ex rel., v. Sadler, 26 Nev., 181 678 

NEW JERSEY. 

AssociaUon v. Shriver, 64 N. J. Law, 660 176 

Bennett ▼. Insurance Co., 66 N. J. Law, 377 609 

NEW YORK. 

Bank v. Jones, 4 N. Y., 497 787 

Cook V. Ban^ 62 N. Y., 96 887 

Croker v. Crane, 21 Wend., 211 686 

Delafleld t. Dllnols, 2 HIU., 164 836 

Drake v. Railroad, 178 N. Y., 466 719 

Mayer v. People, 80 N. Y., 877 226 

Mnlry v. Norton, 100 N. Y., 426 100, 176 

Oakley ▼. AspinwaU, 8 N. Y., 647 882 

People^ ex rel., v. Boorke, 68 N. Y. Supp., 906 679 

ScbeU V, Plumb, 66 N. Y.. 699 227 

Starr v. Trustee, 6 Wend., 666 837 

Walton ▼. Insurance Co., 116 N. Y., 826 610 

Welch y. Cornell, 63 N. Y. Supp., 44 696 

Willett V. Hatch, 132 N. Y.. 41 787 

NORTH CAROLINA. 

Clary's Admrs. v. Clary, 24 N. C, 78 469 

Murry v. Sermon, 1 Hawks, 66 106 

State, ex rel., v. sniis, 111 N. C, 124 679 

State V. Patterson, 98 N. C, 660 888 

OHIO. 

Bmery t. Bank, 26 Ohio St, 360 1 787 

Pim T. Nicholson, 6 Ohio St., 177 888 

Willey V. Lewis, 28 Wkly. Law Bui., 104 126 

OREGON. 

Van Winkle v. Crabtree, 84 Ore., 462 679 



11 Gates] CASES CITED. xrvii 

PENNSYLVANIA. 

Cmmnonwealtli t. Canon, 166 Pa., 183 07 

Dyer t. Bridge Co.. 108 Pa., 182 «W 

Hdbnes t. Bank, 87 Pa., 686 787 

StOTer T. Jack, 60 Pa., 339 78 

SOUTH CAROLINA. 

Power Co. T. Supply Co.. 61 S. C, 361 871 

TEXAS. 

Barbee ▼. SUtem, 97 8. W., 1058 883 

CoUina T. SUte, 8 Tez. App., 323 109 

Hopf T. SUte, 78 Tex., 281 667 

Insurance Co. y. Chowning, 8 Tex. Civ. App., 455 609 

Insurance Co. y. Nichols, 84 8. W., 910 372 

Scott Y. State, 93 S. W., 112 228 

Watson ▼. State, 96 S. W., 116 223 

Z^iff Y. Jennings, 61 Tex., 458 436 

VERMONT. 

Houston Y. Brush, 66 Vt., 831 696 

VIRGINIA. 

Commonwealth y. Jones, 1 Lei^, 611 676 

Insurance Co. y. Morgan, 90 Va., 290 609 

Richardson y. FArrar, 88 Va., 760 861 

Taylor y. Commonwealth, 102 Va., 759 99 

WASHINGTON. 

Jennings y. Railroad, 7 Wash., 275 719 

Seat of GoYemment Case, 1 Wash. T., 115 388 

State, ex rel., y. Fawcett, 17 Wash., 88 579 

State, ex rel., y. Hunter, 3 Wash., 92 '. 248 

UNITED STATES SUPREME COURT. 

Alabama y. Georgia, 23 How., 506 72 

Bank y. Bank, 91 U. S., 98 742 

Banks y. Ogden, 2 Wall., 67 106 

Conard y. Insurance Co., 1 Pet, 386 737 

Den Y. Jersey Co., 16 How., 426 98 

Dows Y. Bank, 91 U. S., 618 737 

Bx Parte Bradstreet, 7 Pet, 634 249 

Ex Parte Parker. 120 U. S., 737 249 

Gibeon y. StOYons, 8 How., 384 738 

Goodtitle Y. Kibbe, 9 How., 471 97 



xxxviii CASES CITED. [U9 Tenn. 

Handly v. Anthony, 6 Wheat, 374 94 

Hardin v. Jordan, 140 U. 8., 371 97 

Harrington ▼. HoUer, 111 U. S., 798 260 

Howard v. Ingorsoll, 13 How., 381 72 

Indiana ▼. Kentucky, 136 U. S., 479 96 

Insorance Co. t. Mowry, 96 XJ. S., 544 606 

• Iowa V. nnnois, 147 XT. S., 2 64 

Iron Co. V. Meeker, 109 U. S., 181 726 

JefferlB y. Land Co., 134 U. S., 178. 105 

Jones V. Soulard, 24 How., 41 83 

Louisiana v. Mississippi, 202 U. S., 41 64 

Manchester v. Massachusetts, 139 U. S., 240 98 

Martin v. RaUroad, 151 U. S., 675 142 

Martin v. Waddell, 16 Pet, 367 98 

McCready v. Virginia, 94 U. S.. 391. 98 

Means v. Bank, 146 U. S., 620. 737 

Missouri V. Kentucky, 11 Wall., 395 76 

Missouri v. Nebraska, 196 U. S., 23... 83,157 

Mower v. Fletcher, 114 U. S., 128 726 

Nebraska v. Iowa, 143 TJ. S., 359 83, 169 

New Orleans v. United States, 10 Pet, 662 105 

Packer v. Bird, 137 U. S.. 666 100 

Packet Co. v. Sickles, 5 Wall., 692 724 

Peyton v. SUth, 6 Pet, 485 152 

Pollard V. Hagan, 3 How., 212 97 

Railroad v. Behymer, 189 XJ. S.. 468 414 

Railroad v. Brow, 164 U. S., 271 355 

Railroad v. Tourvllle, 179 XJ. S., 326 726 

Re Broderick's Will, 21 Wall., 503 656 

Saulet V. Sheppard, 4 Wall., 502 105 

Sessions t. Johnson, 95 XJ. S., 347 , . . 723 

Shaw V. Bank, 101 XJ. S., 557 738 

Smith V. Maryland, 18 How., 71 98 

St Clair County v. Livingston, 23 Wall., 46 105 

St Louis V. Risley, 10 WaU., 91 83 

St Louis V. Rutz, 138 U. S., 226 82,176 

Steam^p Co. v. Kane, 170 XJ. S., 100 372 

The ApoUon, 9 Wheat, 362 94 

United States v. Kirby, 7 Wall., 482 331 

Weber v. Commissioners, 18 Wall., 57. 97 

Yeatman y. Bank, 95 U. S., 764 738 

U. S. C. C. A* 

Bank v. McGraw, 76 Fed., 934 738 

Insurance Co. y. Ouano Co., 65 Fed., 724 609 

Moore t. Telephone Co., 142 Fed., 965. 723 



11 Gates] CASES CITED. xxix 

Railroad v. Hennessey, 96 Fed., 713 412 

Railroad v. RoUer, 100 Fed.. 789 872 

Stockley ▼. Clssna, 119 Fed., 829 99,164 

Trust Co. V. Condon, 67 Fed., 106 607 

Trust Co. V. Railroad, 76 Fed., 433 660 

U. 8. CIRCUIT COURT. 

Amusement Co. t. Traction Co., 139 Fed., 358 ;... 393 

Bank ▼, Treasurer, 25 Fed., 749 837 

Curry y. Roulstone, 3 Fed. Cas., 497 738 

Gilbert t. Insurance Co., 49 Fed., 884 372 

Insurance Co. v. Iron Co., 81 Fed., 442 788 

Powder Co. v. Railroad, 42 Fed., 474 617 

Trust Co. V. RaUroad, 23 Fed., 703 618 

United States v. Railroad, 49 Fed., 297 372 

Wilson T. Freedley, 125 Fed., 962 436 

U. 8. DISTRICT COURT. 

United States y. Railroad, 145 Fed., 438 418 

United States ▼. Railroad, 164 Fed., 897 418 

ENGLISH CASES. 

Beyerly's Case, 4 Rep., 125 486 

Reniger y. FOgossa, 1 Plowden, 19 486 

Thompson y. Dominy, 14 M. ft W., 403 786 



CASES 

ARGUED AND DETERMINED 



IN THE 



SUPEEME COUET OF TENNESSEE, 



FOR THE 



WESTERN DIVISION. 



JACKSON, APRIL TERM, 1907, 
^Continued from 118 Tenn.) 



St. Louis^ Iron Mountai;n & Southern Railway CJom- 
PANY V. C. A. Leazeb^ Administratrix. 

(Jackson. April Term, 1907.) 

1. VERDICT. Conclusive on facts upon appeal. 

The verdict of the Jury is conclusive, upon appeal, as to all 
controverted questions of fact (Pew*, p. 5.) 

4). P£BSONAL INJURIES 0& WRONGFUL BBATH. Action 
did not pass or survive to any except as 'provided in statuta 
previous to Acts 1908, ch. 817. 

Previous to the enactment of the statute (Acts 1903, ch. 317) 
to prevent the abatement of suits for personal injuries or 
death from a wrongful act because of the death of the 

(1) 



2 TENNESSEE REPORTS. [119 Teijn. 

Railroad v. Leazer. 

beneficiary, it was the rule, under the then existing statutes, 
that the right of such action did not pass to any person or 
surviye to any beneficiary, excepting those appointed in the 
statute as entitled to the recovery when the cause of action 
accrued. (Post, pp, 5-11.) 

Code cited and construed: Sec. 4025 (S.); sec. 3130 (M. & V.); 
sec. 2291 (T. & S. and 1858). 

Case cited and approved: Railroad v. Bean, 94 Tenn., 388, 396. 

8, SAMS. Same. Statute to prevent abatement of suit does not 
apply in suit previously adjudged to be abated, whea. 
The statute (Acts 1903, ch. 317) to prevent the abatement of 
suits for personal injuries or death from a wrongful act, be- 
cause of the death of the beneficiary, is not applicable, where, 
under the previous rule stated in the foregoing headnot4, it 
was adjudged, upon plea in abatement, in the mother's pending 
suit, before the enactment of such statute, that the right of 
action or suit had abated on account of the death of the 
father of the deceased boy, and could not be prosecuted for 
the benefit of the mother. (Post, pp, 5-12.) 

Acts cited and construed: Acts 1903, ch. 317. 

4. SAMB. Same. Same. Party not appealing not entitled to 
review of action sustaining plea in abatement, when. 

The ruling of the court below sustaining the defendant's plea 
in abatement as shown in the foregoing headnote cannot be 
reviewed upon the appeal of the defendant alone. (Post, p. 
12.) 

5. SAKE. In action for the damages for the wrongful death, an 
amendment to recover for loss of services during minority of 
deceased is not permissible. 

The mother's suit as administratrix of her deceased minor son 
to recover damages for his wrongful death is a suit in the 
right of the deceased himself, and to recover damages suf- 
fered, first, by himself, and, second, the damages resulting 
to his next of kin, which are adjudged to be the pecuniary 



11 Gates] APBIL TERM, 1907. 3 

Railroad v. Leazer. 

value of his life; and in such suit, an amendment seeking to 
recover damages for the loss of the services of the deceased 
during his minority was wholly unauthorized. {Post, pp. 12- 
16.) 
Code cited and construed: Sees. 4025.4028, 4503, 4504 (S.): 
sees. 3130-3134, 3503, 3504 (M. 6 V.) ; sees. 2291-2293, 2803, 
2804 (T. A S. and 1858). 

Cases cited and approved: Whaley v. Catlett, 103 Tenn., 347; 
Love y. Railroad, 108 Tenn., 125; Davidson-Benedict Co. v. 
Severson, 109 Tenn., 967. 

6. SAMX. Kother's ri^ht of action for Iom of services is limited 
to injuries not resulting in death, of minor chUd, when. 

Upon a proper construction of the statute (Shannon's Code, 
sec. 4503), giving a right of action to the mother, upon the 
father's death, for expenses and actual loss of service resulting 
from an injury to her minor child, the mother's right of 
action is limited to injuries not resulting in death. {Post, 
pp. 9. 10. 15. 16.) 

Code cited and construed: Sees. 4503-4505 (S.); sees. 3503-3505 
(M. & v.); sees. 2803-2805 (T. ft S. and 1,858). 

Cases cited and approved: Cargle v. Railroad, 7 Lea, 719; Rail, 
road V. Doak, 115 Tenn., 720. 



FROM SHELBY. 



Appeal in error from the Circuit Court of Shelby 
County .-rJ. P. Young, Judge. 

. McFakland & Canada^ for Railroad. 

Bell^ Terry^ Anderson & Bell, for Leazer. 



4 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Leazer. 

Me. Justice MoAlisteb delivered the opinion of the 
Court. 

Plaintiff below recovered a verdict and judgment 
against the railroad company for the sum of |2,500 as 
damages for the negligent killing of her son. The com- 
pany appealed^ and has assigned errors. The record re- 
veals that Oliver Leazer, a boy about ten years of age, 
was killed November 23, 1900, on Kentucky avenue, 
in the city of Memphis, by a backing freight train be- 
longing to defendant company. The boy had been sent 
from his mother's home, at the cctrner of Kentucky and 
Iowa avenues, to a vacant lot south of Iowa avenue, for 
the purpose of driving home the cow- The night was 
dark, and it was drizzling rain. There is evidence 
tending to show that there was no light or lookout on 
the first car of the train, which contained sixteen or 
seventeen cars. The train was going from the north 
yai:d to the south yard, and was being pushed by a back- 
ing engine. At the time of the accident it was running 
at the rate of fifteen to twenty miles an hour. It was 
not claimed that any of the statutory precautions were 
observed; but the contention on the part of the com- 
pany is that the accident occurred in the switch yards 
of the company, where the statute did not apply. There 
was only one eyewitness to the accident, who saw ati 
object on the track in the form of a boy, as if stooping 
to pick up something from the ground, when he was 
struck by the car and knocked from the track. The 
witness immediately went to the object, and discovered 



11 Cates] APRIL TEEM, 1907. ^ 5 

nailroad ▼. Leazer. 

that it was Oliver Leazer, whom she had previously 
known. The theory advanced on behalf of the com- 
pany is that the deceased sustained the injury resulting 
in his death while trying to board the car, and that the 
company was in no wise liable for his death. The ver- 
dict of the jury, however, has settled all controverted 
questions of fact arising on the record. It appears that 
on the 28th of November, 1900, his father, J. H. Leazer, 
took out letters of administration, intending to bring 
suit against the company for the death of his intestate, 
but prior to the institution of any suit the father died. 
Mrs. 0. A. Leazer, mother of the boy, then qualified as 
administratrix and instituted the present action. 

The declaration alleged that the plaintiflp was the 
mother and next of kin of said Oliver, and by Code 
Tenn., section 2291 (section 4025, Shannon's Code), 
she is the beneficiary and entitled in this action to re- 
cover damages against the defendant for wrongfully 
and negligently killing said Oliver, and sues as the per- 
sonal representative for the recovery of said damages 
which she, as next of kin at the time of his death, was 
then and there entitled to receive. It is alleged in the 
declaration that neither the fireman, the engineer, nor 
any one else was on the lookout; that no light was on 
the first freight car of the train, and no bell was rung, 
whistle sounded, or effort made to see the deceased or 
avoid the collision. The declaration expressly charges 
that the company failed to comply with the statutory 
regulations intended to prevent accidents on railroad 



6 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Leazer. 

tracks. The declaration further alleges that there was 
no flagman or guard at this crossing, in violation of 
J^he city ordinance requiring the same. The declaration 
also charges the train was running at a dangerous rate 
of speed exceeding six miles an hour, and in violation 
of a city ordinance. 

The company interposed a plea in abatement to 
this declaration, averring that at the death of the son 
he left surviving him his father as his next of kin, 
who was entitled to the recovery, and further averring 
that letters of administration were issued on the 28th 
of November, 1900, to the father, but that, without 
bringing suit, the father had died prior to the institu- 
tion of the present suit by the mother. Wherefore it 
was averred that the death of the father had abated 
the suit. The plea in abatement proceeded upon the 
idea that the father was the sole beneficiary of the right 
of action, and that under authority of Railroad v. Bean, 
94 Tenn., 388, 29 S. W., 370, upon the death of the 
father the right of action abated, and no suit could 
thereafter be brought in the name of the mother or 
other beneficiary. A demurrer was interposed on be- 
half of the plaintiff, Mrs. C. A. Leazer, to the plea in 
abatement interposed by the company, averring that, 
since the father and mother belonged to the same class, 
the right of action had not abated, and therefore the 
plea was insufficient in law. The court overruled the 
demurrer, but granted the plaintiff leave to amend her 
declaration. An amended declaration was accordingly 



11 Gates] APRIL TERM, 1907. 7 

Railroad v. Leazer. 

filed November 23, 1903, averring that at the time of 
the death of the son the plaintiff, Mrs. G. A. Leazer, 
had been abandoned or deserted by her husband, J. U. 
Leazer, and that she had been left to support herself 
and children. In this declaration the plaintiff sought 
to recover the i)ecuniary value of the life of her de- 
ceased son, and also the value of his services until he 
reached his majority; and also the expense incurred for 
medical and burial bills, which had been paid by the 
mother, Mrs. G. A. Leazer. To this declaration the de- 
fendant demurred, alleging the same grounds that were 
raised by the plea in abatement, and upon consideration 
of the demurrer it was sustained by the court, except 
as to the claims for medical bills and burial expenses 
and damages for loss of the services of the deceased 
until his majority. The result of the action of the 
court on the demurrer was to deny the plaintiff any 
right of recovery for the pecuniary value of the life of 
her deceased son, since the father was the sole benefici- 
ary of that right of action, and, the father having died, 
it did not pass to the mother; but the court held that 
the mother would be entitled to recover for the loss 
of the services of her son until he reached his majority, 
and also for expenses incurred by her for medical 
treatment and burial of her deceased son. But, since 
the amended declaration claimed damages for loss of 
services of the minor in the name of the administratrix 
for use of the mother, permission was asked and leave 
obtained to file a second amended declaration, which 



8 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Leazer. 

was accordingly done October 25, 1904. In this .second 
amended declaration Mra C. A. Leaaer, mother of the 
deceased boy, claimed in her own right, and not as ad- 
ministratrix, damages for loss of services of the intestate 
son from the date of his death until the date of his 
majority. This was the only claim made in the second 
amended declaration. A demurrer was interposed on 
behalf of the company, which was overruled by the trial 
judge. After the demurrer was overruled the defendant 
filed two pleas: First, the general issue; second, a spe- 
cial plea denying that at the time of the death of the 
intestate the plaintiff was supporting herself and her 
children without the aid and assistance of intestate's 
father, and denying that for several years prior to the 
death of intestate's father he had abandoned plaintiff 
and left her to support herself and children; third, the 
statute of limitations of one year was pleaded. On the 
issues thus formulated the cause was heard by the 
court and jury July 2, 1906, resulting in a mistrial. 
The cause was again heard at the November term, 1906, 
resulting in a verdict and judgment in favor of the 
plaintiff for the sum of $2,500 against the defendant 
cianpany. 

On the trial Mrs. Leazer testified that she and her 
husband had been living separate and apart, and that 
the entire support of herself and family devolved on 
her, for the reason that she had been abandoned by her 
husband. J. L. Long, another witness, testified that 
prior to the death of J. H. Leazer he had been living 



/ 



11 Gates] APRIL TEEM, 1907. 9 

Railroad v. Leazer. 

separate and apart from his wife, and had boarded for 
fieveral months prior to the death of the child at the 
house of the witness. It is true that J. H. Leazer died 
at the home of his wife, the plaintiff; but she explains 
that when he came home he was in a dying condition^ 
and be^ed the family to forgive him and permit him 
to die there, and requested that they do all they could 
for him. The wife testified that under the circum- 
stances she could not refuse to let him come home. Ho 
died in several days after he came home. 

The first assignment of error is that the court erred 
in not sustaining the demurrer filed on behalf of the 
company I>ecember 10, 1904, to the second amended 
declaration of the plaintiff filed October 25, 1904. In 
support of this assignment of error it is said by counsel 
for the company that the plaintiff, as administratrix 
of her deceased son, had first filed a declaration under 
section 4025, Shannon's Code, claiming the right of re- 
covery as beneficiary of the right of action of her son, 
and not claiming under section 4503 of the Code for 
loss of services of her son. The two^ sections of the 
Code referred to may be here quoted. 

Shannon's Code, section 4503 : 

^^Father tyr Mother may Sue for Loss by Injury to 
Minor Child. — ^A father, or in case of his death or 
desertion of his family, the mother may maintain an 
action for the expense and actual loss of service result- 
ing from an injury to a minor child in the parent's 



10 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Leazer. 

service or living in the family/' (Code Ala. 1852, sec 
tion 2135; Code Iowa 1860, section 2792.) 

Shannon's Code, section 4505: 

"Wife? may Sue and he Sued When Husband Deserts. 
— Where the husband has deserted his family the wife 
may prosecute or defend in his name any action which 
he may have prosecuted or defended ; she may also 
sue or be sued in her own name for any cause of action 
accruing subsequently to the desertion." (Laws 1835- 
36, p. 166, c. 56.) 

The section of Shannon's Code upon which the 
plaintiff brought her original suit is section 4025, as 
follows : 

"The right of action which a person who dies from 
Injuries received from another, or whose death is caused 
by the wrongful act, omission, or killing by another, 
would have had against the wrongdoer in case death 
had not ensued, shall not abate or be extinguished by 
his death, but shall pass to his widow, and in case 
there is no widow to his children, or to his personal 
representative for the benefit of his widow or next of 
kin free from the claims of creditors." (Laws 1851- 
52, p. 23, c. 17; Laws 1871, p. 70, c. 78, sec. L) 

Now, as already stated, a plea in abatement was sus- 
tained to the original action by the plaintiff, as admin- 
istratrix, upon the ground that her husband, J. H. 
Leazer, who was the sole beneficiary of the deceased, 
intestate's son, had died, and that the right of action 
did not then pass to another beneficiary, but wholly 



11 Gates] APRIL TERM, 1907. 11 

Railroad y. Leaser. 

abated. The trial judge sustained the plea in abate- 
ment under the authority of Bailrodd v. Bean, 94 Tenn., 
388, 29 S. W., 370. In that case we held, in constru- 
ing this statute: 

'^That the right of action does not pass to any per- 
son or survive to any beneficiary, excepting those ap- 
pointed in the statute so Shtitled to the recovery when 
the cause of action accrued." 

It was accordingly held in that case that a suit for 
the wrongful killing of a decedent, brought by his 
administrator for the sole benefit of his widow, there 
being no surviving children, abates upon the death of 
the widow, occurring even after judgment below and 
pending appeal in this court. Such suit cannot be re- 
vived or prosecuted, after the widow's death, for the 
benefit of the father of the deceased, or of others stand- 
ing next in the line of succession. 

The rule, however, announced in Railroad v. Bean, 
supra, was changed by an act of the general assembly 
of the State of Tennessee, approved April 2, 1903, being 
chapter 317, p. 938, of the Acts of 1903, as follows: 

"No suit now pending or hereafter brought for per- 
sonal injuries or death from a wrongful act in any 
of the courts of this State, whether by appeal or other- 
wise, and whether in an inferior or superior court shall 
abate or be abated because or on account of the death 
of the beneficiary or beneficiaries for whose use and 
benefit said suit was brought, and such suit shall be 
proceeded with to a final judgment, as though such 



12 TENNESSEE REPORTS. [119 Tenn. 

Railroad t. Leazer. 

beneficiary or beneficiaries had not died, for the use and 
benefit of the heirs at law of such deceased beneficiary.'* 

It is said, however, that the act of 1903 is inappli- 
cable to the present suit^ for the reason that the cause 
of action accrued November 23, 1900, when the boy was 
killed, and that the judgment of the court sustaining 
the plea in abatement and enforcing the rule announced 
in Railroad v. Bean, supra, was pronounced December 
18,. 1902, while the act of assembly changing the rule in 
Railroad v. Bean was not passed until April 2, 1903* 
and hence that act can have no application in this 
case. 

We think this contention is sound, and the act of 
1903 is inapplicable in the present case, for the reason 
that long before it was passed it had been adjudged 
herein that the suit had abated on account of the death 
of the father, and could not be revived and prosecuted 
for the benefit of the mother, of the boy. In other 
words, the court had applied the rule announced by 
this court in Railroad v. Bean, supra, and the ruling 
of the court on this subject cannot now be reviewed on 
the appeal of the defendant company. 

The main question presented on this assignment of 
error is whether the circuit judge should have sustained 
the demurrer interposed on behalf of the company to 
the second amended declaration herein. The mother 
of the deceased boy sought to recover for the loss of 
his services from the time of his death until the time 
he would have attained his majority. It will be ob- 



11 Gates] APRIL TERM, 1907. 13 

Railroad r. Leazer. 

served in the first place that this right of action is 
secured by section 4503 to the father, or, in case of his 
death or desertion of his family, to the mother, and the 
statute does not contemplate a suit for the recovery of 
such damages by the administratrix of the deceased. It 
will also be observed that the amended declaration, pre- 
senting the claim of the mother for the loss of the servi- 
ces of her deceased son, was filed in a suit which had 
been brought by her as administratrix under section 
4025 of the Code. The right of action given by that sec- 
tion of the Code under all the authorities was the action 
of the deceased, which did not abate on account of his 
death, but passed to certain beneficiaries in the order 
named in the statute. Construing this section of the 
Code and other constituent statutes in Whaley v. Catlett, 
103 Tenn., 347, 53 S. W., 133, it was said by this court 
that: 

"These sections provide alone for the continued ex- 
istence and passing of the right of action of the deceased, 
and not for any independent cause of action in the 
widow, children, or next of kin. Section 4025, Shan- 
non's Code, refers to it as the right of action which the 
deceased would have had in case death had not ensued, 
and provides that it shall not abate or be extinguished, 
but shall pass to his widow, etc. It does not provide 
for or refer to any new cause of action arising or com- 
ing into existence in their favor. It is alone by virtue 
of these statutes that a right of action exists in the wid- 
ow, children, or next of kin at all for the unlawful kill- 



14 TENNESSEE EEPOBTS. [119 Tenn. 

Railroad t. Leazer. 

ing of the deceased, and this right exists under the 
statute, not because it arises directly to them in their 
own right, but because it passes to them in the right of 
the deceased." 

In liOW V. Southef'1% Railway Company, 108 Tenn., 
125, 65 S. W., 475, 55 L. R. A., 471, it was said : 

"When therefore, the agtion is brought by the repre- 
sentative of the deceased, although it is for the benefit 
of the widow, children, or next of kin, it is not in his 
right, but is in the right of the deceased, and is but a 
continuation of that right or cause of action." 

In DavidsofirBenedict Co. v. Severson, 109 Tenn., 572, 
72 S. W., 967, it was held that: 

"Under these statutes (Shannon's Code, sections 4025, 
4028) two classes of damages are recoverable: First, 
damages purely for the injury to the deceased himself, 
and in this class are embraced damages for the mental 
and physical suffering, loss of time, and necessary ex- 
penses resulting to the deceased from the personal in- 
juries; second, the incidental damages suffered by the 
widow, children, or next of kin from the death, and in 
this class is embraced the pecuniary value of the life of 
the deceased, to be determined : 

"(a) Upon a consideration of his expectancy of life, 
his age, conditions of health, and strength. 

"(b) Capacity for labor and for earning money 
through skill in any art, trade, profession, occupation, 
or business. 



11 Gates] APRIL TERM, 1907. 15 

Railroad v. Leazer. 

'^(c) And his personal habits, as to sobriety and in- 
dustry." 

It was held that the cause of action accrued to tbit 
deceased, and that both classes of damages are recov- 
erable in one and the same action. 

In view of our statutes and decisions, it must be ap- 
parent that when Mrs. Leazer, as administratrix of her 
deceased son, brought the original action, it was in thf- 
right of the deceased himself, and to recover damages 
suffered, first, .by himself, and, second, the damages re- 
sulting to his next of kin, which are adjudged to be the 
pecuniary value of his life. In such a suit an amend- 
ment seeking to recover damages for the loss of the ser- 
vices of a minor child was wholly unauthorized. Such 
a suit could only be brought by the father, or, in case 
of his death or desertion of his family, by the mother, 
under section 4503 of Shannon's Code. As already seen, 
the present action was brought by the mother, as admin- 
istratrix, under sections 4025, 4028, of the Code, to re- 
cover, first, damages purely for the injury to the deceas- 
ed himself, and, second, the pecuniary value of the life 
of the deceased for the benefit of his next of kin. It is 
obvious that an amendment to the declaration in this 
original suit, which introduced a claim on the part of 
the mother for loss of the services of her deceased son, 
introduced a new statutory cause of action, which was 
wholly outside of the object and purposes of the original 
suit. 

Moreover, we are of opinion that upon a proper con- 



16 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Leazer. 

struction of section 4503 of the Code the right of action 
given to the mother is limited to injuries not resulting 
in death. Where death occurs by a wrongful act, the 
rights of the parents are to be redressed under sections 
4025-4028 of Shannon's Code. This construction of the 
i^tatute is obvious from a consideration of the next suc- 
ceeding section ^(4504), which provides: "An action 
fop the injury to the child shall be brought in the name 
of the child itself." Gargle^ by Next Friend v. N., C. 
4& St. L. Ry,, 7 Lea, 719. 

Again, the recovery allowed by section 4503 is limited 
to the expenses and actual loss of services resulting from 
an injury to a minor child. Raikoay v. Doak, 115 Tenn., 
720, 92 S. W., 853. 

This construction of the statute will harmonize what 
otherwise might appear conflicting remedies and will 
aflPord the parent an ample remedy under sections 4025- 
4028 for injuries sustained in consequence of the unlaw- 
ful killing of the child, and also a remedy under section 
4503 for expenses and actual loss of services resulting 
from an injury to the child, not resulting in death. In 
this view of the statute we are of the opinion that the 
plaintiff is not entitled to maintain this recovery, based, 
as it is, entirely on section 4503 of Shannon's Code. 

The circuit judge was therefore, in error in overrul- 
ing the demurrer of the defendant company to this sec- 
ond amended declaration. The judgment below is there- 
fore reversed, the demurrer sustained, and the plaintiff's 
suit dismissed. 



11 Gates] APRIL TERM, 1907. 17 

Grler v. Canada. 



John M. Gbier v. W. R. Canada et al. 

{Jaclxson. April Term, 1907.) 

1. WILLS. BevlM of land to be divided among devisee's bodily 
heirs at his death vests in him a life estate only, when. 

A deyise of real estate to testator's son, and at his death to be 
equally divided among his bodily heirs as the property of the 
testator, vests in the son only a life estate. {Po9t, pp. 22, 24.) 

2. 8AKB. Oertifled copy of probated will is prima facie evidence 
of its validity; what may be shown; issne of devisavit vel non 
is not triable, when. 

The heir, seeking to establish his title to land in a suit to re- 
cover it, may proceed upon a certified copy of the probated 
will, which, when duly attested, is printa facie evidence of the 
validity of the will, but it is not conclusive; and while the fact 
that fraud was committed in drawing or obtaining the will 
or that it was not formally executed and attested, may be 
shown, yet it is not admissible in such a suit to try an 
issue of devisavit veZ non. {Post, pp. 28-31.) 

Code cited and construed: Sees. 3929-3931 (S.); sees. 3037-3039 
(M. Ik v.); sees. 2197-2199 (T. k A. and 1858). 

Acts cited and construed: Acts 1784 (Oct Ses.), ch. 10, sec. 6. 

Cases cited and approved: Weatherhead v. Sewell, 9 Humph., 
272; Brown v. Brown, 14 Lea, 253. 

8. SAMS. Probate record of holographic will must show what, 
to be valid as to land; good as to personalty, when. 
The probate record of a holographic will must show, among 
other things, that the handwriting of the testator was generally 
known by his acquaintances and that three credible wit- 
nesses proved ,that the writing and every part of it wfts in his 
hand, to be valid and effective as to the land devised. Probate 
record of proof by two witnesses that they were well ac- 
119 Tenn— 2 



18 TENNESSEE REPORTS. [119 Tenn. 

Grier v. Canada. 

Quainted with the testator's handwriting, and that the signature 
to the will is in his handwriting, is fatally defective and in- 
sufficient to sustain a holographic will of realty, because the 
statutory requirements do not appear in the record, but it would 
be good for a will of personalty. (Post, pp. 31. 32.) 

Code cited and construed: Sec, 3896 (8.); sec. 3004 (M. A V.); 
sec. 2163 (T. ft S. and 1858). 

4. SAME. Be-probate supplying defects nineteen years alter 
origfinal probate is prima facie sufficient, when. 
Where the probate record of a holographic will made in 1886 
was insufficient as to realty, but sufficient as to personalty, a 
re-probate thereof made in 1905, upon motion in an ex parte 
proceeding without petition or notice, as required for probate 
in* solemn form, but with all the formalities required to pro- 
bate a holographic will as to land, is sufficient to make out a 
^prima facie case in favor of a beneficiary under the will, since 
it was an ancillary proceeding to supply formalities that 
were omitted in a former order rather than to destroy the 
original probate, and the burden of proving the Invalidity of the 
will for fraud, accident, or mistake, devolved upon those as- 
serting it The right to re-probate was not barred by the 
lapse of time. (Post, pp, 32-34.) 

6. ESTOPPEL. By statements and admissions in sworn plead- 
ings in other suits. 
A party will not be permitted to deny in one proceeding facts 
which he has admitted or averred In his solemn pleadings 
under oath in another proceeding. Hence, where defendants 
had asserted in sworn pleadings in other suits or proceedings 
that a certain decedent had left a last will and testament, which 
was duly probated, etc., they are estopped to deny the probate 
of the will. (Post, pp, 34-37.) 

Cases cited and approved: Hamilton v. Zimmerman, 5 Sneed, 
39; Stephenson v. Walker, 8 Bax., 289; Chilton v. Scruggs, 5 
Lea, 318. 



1] Cates] APRIL TERM, 1907. 19 

Grier v. Canada. 

6. SAME. By deposition in judicial proceedings. 

Where a party has testified to certain facts in a deposition taken 
In Judicial proceedings, he will be estopped from denying such 
facts in another proceeding. (Post, p. 36.) 

Cases cited and approved: Cooley y. Steele, 2 Head, 605; Still- 
man T. Stlllman, 7 Bax., 175. 

7. INNOCENT PUBCHASEB. Defense must be made by an- 
swer or special plea. 

The defense of innocent purchaser must be made either by 

the answer or special plea. (Post, p. 37.) 
Case cited and approved : Dunham v. Harvey, 111 Tenn., 620. 

8. SAME. Befusal to permit plea to be filed at bearing will not 
be reviewed on appeal. 

The action of the chancellor in declining to permit the plea of 
innocent purchaser to be filed after all the evidence had been 
taken and the case was about to be tried will not be reviewed 
on appeal. It was a matter in the sound discretion of the 
chancellor. (Post, p. 37.) 

9. HOMESTEAD. Abandoned by removal frpm the State by a 
wife cohabiting with another man. 

Since Acts 1879, ch. 171, the right of homestead is not depend, 
ent upon occupancy, and an assigned homestead is not aban- 
doned by removal from the premises, except by permanent 
removal beyond the limits of the State. Our homestead and 
exemption laws are for citizens only, and not for nonresidents, 
and the homestead Is abandoned or forfeited when the occu. 
pant becomes nonresident. Hence, where one claiming ti right 
under assigned homestead deserted her husband and removed 
to another State, where she cohabited for several years with 
another man, the homestead was abandoned when she became 
a nonresident. (Post, pp. 37-42.) 

Code cited and construed: Sec. 4227 (S.); sec. 3331 (M. & V.); 
sec. 2474 (T. & S. and 1858). 

Acts cited and construed: Acts 1879, ch. 171. 



20 TENNESSEE REPORTS. [119 Tenn. 

Grier v. Canada. 

Cases cited and approved: Prater v. Prater, 87 Tenn., 78; Car- 
rigan v. Rowell, 96 Tenn., 185; Farrls v. Sipes, 99 Tenn., 
300; Briscoe v. Vaughn, 103 Tenn., 311; CoUe y. Hudgins, 109 
Tenn., 220; Freeman y. Freeman, 111 Tenn. 151. 

10. SAME. When assigned, is transferable as life estate.. 
Homestead, when assigned, is transferable as a life estate.' (Post, 

p. 40.) 

Cases cited and approved: Cowan v. Carson, 101 Tenn., 523; 
Delk y. Yelton, 103 Tenn., 480; McCrae y. McCrae, 103 Tenn., 
721. 

11. PRBSUMFTION. Of continuance of life, when. 

.Where a person is shown to be living at a certain time, the 
presumption of continued life arises, in the absence of proof, 
as where a husband is shown to be living when he procures a 
divorce from hid wife, he will be presumed, in the absence 
of proof, to be living, when she subsequently marries her co- 
adulterer, and attempts to convey the homestead. {Post, p. 
41.) 

13. HOMESTEAD. Abandonment of, shown by records in other 
suits, when. 
In an action involving title and right to possession of real es- 
tate, where defendant claimed under a conveyance of an al- 
leged assigned homestead the record of a divorce suit against 
defendant's grantor, showing that she had become a nonresi- 
dent and had abandoned the homestead before the conveyance 
Is admissible, and so is the record of a suit by defendants 
agkinst their said grantor alleging her nonrestdence. {Post, 
pp. 41, 42.) 

13. EVIDENCE. Part of record is admissible where balance 
is accounted for, when. 
Part of a record is competent and admissible, where the certifi- 
cate of the clerk accounts for the balance of the record. {Post, 
p. 42.) 

Cases cited and approved: Russell v. Houston, 115 Tenn., 536. 



11 Gates] APRIL TERM, 1907. 21 

Orier v. Canada. 



PROM GIBSON. 



Appeal from the Chancery Court of Gibson County. — 
John S. Cooper, Chancellor. 

Deason, Rankin & Elder, for complainant. 

Harwood & Clark, for defendants. 



Mr. Justice McAlister delivered the opinion of the 
Court. 

The object of this bill is to establish complainant's 
title and right of possession to a tract of land situated 
in Oibson county and comprising about 130 acres. 

Complainant, John M. Griar, claims title to the land 
under the will of his grandfather, A. M. Grier, who died 
testate in Gibson county, Tenn., about the 17th day of 
December, 1885, leaving surviving him as his only heir 
at law James P. Grier, who was the father of the present 
complainant. The bill alleges that said will was duly 
«ind regularly probated before the county court of Gib- 
son county, Tenn., and duly recorded. A copy of the 
will was filed as an exhibit to the bill. 

The third item of the will of A. M. Grier is in the fol- 
lowing language: 



22 TENNESSEE REPORTS. [119 Tenn. 

Grier v. Canada. 

"That I give and bequeath unto my son, James P. 
Grier, as after all my just debts being settled, all my 
personal property and real estate, and at his death I 
direct that my real estate be divided equally among his 
bodily heirs." 

It is alleged in the bill that the James P. Grier refer- 
red to in the clause of the will just quoted was the father 
of complainant, John M. Grier; that the said James P. 
Grier is dead, and that he died in the month of February, 
1889; that the complainant, John M. Grier, is the only 
child and bodily heir of the said James P. Grier; and 
that complainant was bom on the 19th of March, 1882, 
in Gibson county, Tenn. It is then alleged that under 
proper construction of said will James P. Grier, the 
father of complainant, took a life estate in the tract of 
land in controversy, and that complainant, as the only 
bodily heir of the said James P. Grier, was vested under 
said will with the remainder in fee in said tract of land, 
and that, said life estate having terminated in February, 
1899, by the death of his father, James P. Grier, the 
complainant became then entitled to the immediate pos- 
session of the same; but that the defejidants, S. L. 
Canada and her husband, W. R. Canada, are now and 
have been since February, 1899, in the possession of 
said land, exercising dominion over the same, and ap- 
propriating the rents and profits thereof to their own 
use and benefit 

Complainant further states to the court that he was 
twenty-one years of age on the 19th day of March, 1903, 



11 Gates] APRIL TERM, 1907. 23 

Grler v. Canada. 

and the present bill was filed on the 20th of December, 
1905, within three years after he attained his majority. 
The complainant shows to the court that defendants 
Canada and wife have claimed said tract under and 
through a deed executed to them by complainant's fath- 
er, James P. Grier, on the 10th day of October, 1888; 
that said deed does not undertake to show what interest 
the said James P. Grier claimed in said land, but that 
the said W. R. Canada, at the date of said conveyance, 
well knew that the said James P. Grier only had a life 
estate in said property; that, while said conveyance re- 
cited the consideration of |750, the real consideration 
was much less, and merely a nominal sum ; that James 
P. Grier (or James W. Grier, as the name erroneously 
appears in the deed) had only a life estate, and could 
convey no more, and did in fact convey only a life estate. 
Complainant further charges that W. R. Canada be- 
came involved in debt on the 25th of October, 1889, and 
made a fictitious conveyance of said land to one J. T. 
Gordon; that the said J. T. Gordon held the same for 
some time for the benefit of the said W. R. Canada; 
that on October 22, 1891, the said J. T. Gordon executed 
a quitclaim deed to said tract of land to Mrs. S. L. 
Canada, wife of W. R. Canada ; that S. L. Canada held 
said land until August 10, 1898, when she made some 
kind of conveyance of the same to her son, W. B. Somers ; 
that the said W. B. Somers pretended to hold the said 
tract of land for some time, but in fact W. R. Canada 
and wife, S. L. Canada, were the real beneficiaries of 



24 TENNESSEE REPORTS. [119 Tenn. 

Grier v. Canada. 

the rents and profits during said time; that finally, on 
the 30th of January, 1905, the said W. B. Somers recon- 
veyed said land to the defendant S. L. Canada, wife of 
W. R. Canada, and the defendants are now holding said 
land under that conveyance. The defendants demur- 
red to the bill, assigning for cause that under a proper 
construction of the will of A. M. Grier, deceased, the 
said James P. Grier took the absolute fee in said tract 
of land, and not merely a life estate, as claimed by com- 
plainant in the bill. The chancellor overruled said de 
murrer, and on appeal the decree of the chancellor was 
affirmed by this court at the April term, 1906. It was 
adjudged by this court that under a proper construction 
of said will the said James P. Grier only took a life 
estate, and thereupon the cause was remanded to the 
chancery court of Gibson county for answer and further 
proceedings. 

On June 6, 1906, defendants Canada and wife filed 
their joint and separate answers, in which they admitted 
the death of A. M. Grier and that James P. Grier was 
his only child and heir at law. Among other defenses in- 
terposed, defendants deny that A. M. Grier disposed of 
or undertook to devise said tract of land by will, or that 
he ever executed a will to convey real estate, or that he 
ev^r attempted to do so, or that the alleged will could 
form any link in complainant's alleged chain of title. 
Further answering on this point, respondents state 
that shortly after the death of said A. M. Grier said 
alleged will was attempted to be probated in the county 



11 Gates] APRIL TERM, 1907. 25 

Grier v. Canada. 

court of Gibson county as a holographic will ; but upon 
the proof the will was probated simply as a valid will 
of personal property, and the adjudication of the county 
court affimiatiyely shows that it was not and could not 
be probated as a holographic will, and, if a valid will at 
all for any purpose, these respondents deny that it was 
valid as a conveyance of real estate. The alleged pro- 
bate of said will was made on March 1, 1886. 

Since this averment of the answer is based upon the 
order of the county court probating said will March 1, 
1886, it is well at this point to set out said probate order, 
as follows: 

"A paper writing purporting to be the last will and 
testament of A. M. Grier, deceased, was this day pro- 
duced in open court, and the handwriting of the said 
A. M. Grier proven by the oaths of W. J. R. Becton and 
H. J. Thomas, who, being duly sworn, depose and say 
that they are well acquainted with the handwriting of 
said A. M. Grier, and the signature thereto is in his 
handwriting. 

"Whereupon said instrument was admitted to pro- 
bate as the last will and testament of W. A. Grier, de- 
ceased, and ordered put to record." 

It will be observed that the specific objections to this 
order of probate is that it does not affirmatively appear 
that the handwriting of the testator was proven by three 
witnesses, nor does it appear from the testimony of 
three witnesses that said paper writing was wholly in 
the handwriting of the testator ; but the probate only re- 



23 TENNESSEE REPORTS. [119 Tenn. 

Grier v. Canada. 

cites that two witnesses proved that th^ were well ac- 
quainted with the handwriting of the testator and that 
the signature to the instrument was in his handwriting. 
Further it appears that said instrument was admitted 
to probate as the last will and testament of W. A. Grier, 
iieceased. 

It is to be observed, however, that said order of pro- 
bate opens the recital as follows : "^^A paper writing pur- 
porting to be the last will and testament of A. M. Grier, 
deceased," etc. 

The answer further avers that at the December term, 
1905, of the county court of Gibson county, and only a 
few days before the filing of complainant's bill, com- 
plainant, without notice to either of these defendants, 
went before said county court and undertook to re- 
probate said instrument as a holographic will. It is 
:admitted that the last order or probate, made at the De- 
<!ember term, 1905, of the county court, fully complies 
with all of the formalities required by law to probate a 
liolographic will ; but it is insisted on behalf of the de- 
fendants that the county court, having probated this 
will more than twenty years prior to this time, had no 
jurisdiction to set aside the former probate upon mere 
Biotion of the executor and re-probate said will. Fur- 
ther answering, defendants say that the last action of 
the county court is void, not only from want of jurisdic- 
tion, but because said will is not in the handwriting of 
A. M. Grier, deceased, unless it is the signature of the 
said instrument; and it is further charged that the re- 



11 Gates] APRIL TERM, 1907. 27 

Grier v. Canada. 

?)robate was a fraudulent scheme upon the part of the 
complainant and the executor to recover the real estate 
in question from these defendants. It is then averred 
that no part of the statutory requirements with refer- 
ence to holographic wills was ever complied with ; that 
the paper writing was not in the handwriting of the 
testator, nor was the will found among his valuable 
papers, nor was the handwriting known to be the hand- 
writing of A. M. Grier. It is further charged that the 
latter action of the county court was procured by fraud 
and misrepresentations as to the real facts touching the 
execution of said paper, and was taken by the county 
court upon ex parte proceedings, and is invalid so far 
;is defendants are concerned. 

Among other defenses pleaded were the statutes of 
limitation of three, six, seven and twenty years, the de- 
fense of coverture, and a discharge in bankruptcy. 

On the issues thus formulated proof was taken, and 
on the final hearing the chancellor decreed that com- 
plainant was entitled to recover possession of said tract 
of land from the defendants W. R. Canada and his 
wife, S. L. Canada, and ordered a writ of possession to 
issue. The chancellor further decreed that the defend- 
ants are not entitled to retain possession of the land 
known as the "Brewer homestead, '' and particularly de- 
scribed in the decree in /. T. Carthel et al. v. J. N. Brew- 
er et al.^ and in certain of the conveyances offered in 
evidence, but that complainant is entitled to recover pos- 
session of that portion of said land, and was so entitled 



28 TENNESSEE REPOETS. [119 Tenn. 

Grier v. Canada. 

to recover the same upon the death of James P. Grier 
in February, 1889. 

The chancellor then ordered a reference to the clerk 
and master to take proof and report as to the rents and 
profits of said land since 1899, and thereupon the pres- 
ent appeal was prayed by the defendants, which was ac- 
cordingly allowed by the chancellor in the exercise of 
his discretion. 

The first assignment is: The court erred in decreeing 
that the paper writing exhibited with the bill, and un- 
der which complainant claims, was in fact and in law 
the last will and testament of A. M. Grier, deceased. 

The second assignment is that the court erred in the 
admission as evidence of the record of probate of said 
alleged will at the March term, 1886, of the county court 
of Gibson county. Said record on its face, and said will, 
showed that no title to said land was or could be com- 
municated to the complainant by or through said will 
and said probate thereof. 

The third assignment of error is that the court erred 
in the admission of said will and the attempted probate 
of the same at the December term, 1905, of said county 
court, as evidence in this cause. 

These three assignments of error, presenting cognate 
questions, will be considered together. The general ob- 
ject of this bill is to establish title to land under a will 
as a muniment of title. The validity of the probate of 
tJiat will, as well as the validity of its execution, are both 
attacked in the answers filed in this cause. It is im- 



11 Gates] APEIL TERM, 1907. 29 

Grier v. Canada. 

portant, therefore, in the inyestigation of this cause, 
to state the law applicable in such cases. 

The act of 1784, embodied in Shannon's Code, provides 
as follows: 

"Sec. 3929. The probate of wills in the county courts 
shall be sufficient evidence of a devise of real estate. 

"Sec. 3930. Attested copies of such wills or the 
records thereof by the proper officer may be given in evi- 
dence in the same manner as the originala 

"Sec. 3931. But when, any fraud is suggested to have 
been committed in the drawing or obtaining any last 
will or any irregularity in the executing or attestation 
thereof, the party making such suggestion may insist 
upon the original will being produced to the court if the 
same is to be found." 

This act and its construction was before this court 
in Weatherhead v. Sewell, 9 Humph., 272, and Brown v. 
Brown, 14 Lea, 253, 52 Am. Eep., 169. Mr. Pritchard, 
in his work on Wills and Administrations (section 321 
et seq.)y has a clear and condensed statement of the re- 
sult of our decisions establishing the practice in such 
cases: 

"Sec. 321. Before the statute on the subject, when 
a will was relied on as a muniment of title to the 
lands, the original had to be produced and proved ; but 
the statute permits the use of a certified copy, which may 
be read upon the probate in the county court When 
this was done the parties stood in the same position that 
they would have stood in provided the original had been 



30 TENNESSEE REPORTS. [119 Tcnn. 

Grler v. Canada. 

produced and proved as is required by the common law ; 
that is, the party claiming under a will has made out 
his case prima facie, and those claiming against the will 
are put upon the defense to show that it is no will, qr 
that the party producing it takes no interest under it. 
An attested copy of the will, with the probate in the 
county court, is substituted in the place of the original 
will and proven in open court per testes; but such at- 
tested copy, with the probate, is not conclusive, as is 
the probate of a will in personalty. The statute was 
intended for the benefit of those contesting the right of 
the claimant under the will, in order to give them the 
benefit of any evidence of fraud or irregularity which 
may appear on the face of the will. The defendant may 
attack the will, and the rights of those claiming under 
it, as well and to the same extent as where the original 
is produced and proved in common-law form upon the 
trial. But, before the person resisting the claim undpr 
the will can require the production of the original, he 
must suggest that a fraud has been committM in draw- 
ing or obtaining it, or that there is some irregularity 
in the execution or attestation thereof." 

It thus appears from the authorities that the heir, in 
seeking to establish his title to the land in controversy, 
may proceed upon a certified copy of the will, which, 
when duly attested, is prima facie evidence of the valid- 
ity of the will; but it is not conclusive. It may be 
shown that a fraud was committed in drawing or ob- 
taining it, or that it was not formally executed and at- 



11 Gates] APRIL TERM, 1907. 31 

Grier v. Canada. 

tested ; but it is not admissible in such a proceeding to 
try an issue of devisavit vel nan. 

The question first arising is in respect of the validity 
of the probate of this will at the March term, 1886. As> 
already seen, that probate record is as follows: 

"A -paper writing purporting to be the last will and 
testament of A. M'. Grier, deceased, was this day pro- 
duced in open court, and the handwriting of the said 
A. M. Grier proven by the oaths of W. J. R. Becton and 
H. J. Thomas, who, being duly sworn, depose and say 
that they were well acquainted with the handwriting of 
the said A. M. Grier, and the signature thereto is in his 
handwriting. Whereupon said instrument is admitted 
to probate as the last will and testament of A. M. Grier,. 
deceased, and ordered put to record. And thereupon 
J. C. *A. Grier, the executor named in said will, came 
into court and entered into bond for the sum of |200, 
and W. J. R. Becton and J. Y. Mitchell as his sureties, 
which bond was duly acknowledged in open court, re- 
ceived, and approved by the court, and ordered to be 
recorded; and thereupon the said J. C. A. Grier took 
the oath prescribed by law. And accordingly ordered 
letters testamentary issue." 

We are of the opinion -that this probate record was 
fatally defective. While good as a will of personalty^ 
such a probate was wholly insufficient to prove a will 
of realty. It will be observed that the effort, as dis- 
closed by the probate record, was to. prove a holographic 
will. The probate record fails to disclose that the 



32 TENNESSEE REPORTS. [119 Tenn. 

Grier v. Canada. 

luind writing of the testator was generally known by his 
acquaintances and that three credible witnesses proved 
that the writing and every part of it was in his hand« 
None of the statutory requirements in order to make a 
valid probate of a holographic will appear in this probate 
record. Shannon's Code, section 3896. 

It is conceded that the re-probate made on the 19th 
day of December, 1905, supplied all the omissions in the 
original probate and conformed with all the formalities 
prescribed by statute for a probate of a holographic will. 
It is unnecessary to set out at length this re-probate. 

It is insisted, however, on behalf of appellants, that 
the county court, having exhausted its jurisdiction to 
probate this will at the March term, 1886, had no power 
to entertain the second probate, except by regular pro- 
ceedings to probate in solemn form. It is further in- 
sisted on behalf of appellants that the probate of the 
original will at the March term, 1886, of the said court, 
was an adjudication that the said will was a good and 
valid will of personalty and an insufficient and invalid 
will of real estate. Finally, it is said that in no event 
would the county court have authority or jurisdiction 
to probate this will again upon mere motion in an ex 
parte proceeding, without petition and without notice. 

We are of opinion that the re-probate of the will at 
the December term, 1905, although nineteen years after 
the original probate, was authorized by law. In con- 
sidering this subject Mr. Pritchard says (section 322) : 

"The power of the county court to revoke a probate 



11 Gates] APRIL TERM, 1907. 33 

Orier ▼. Canada. 

once granted, although nowhere expressly recognized in 
the statutes of this State, is a just and necessary power 
to be implied from the statute conferring the general 
power to take the probate of wills and grant and re- 
voke letters testamentary and of administration. This 
power exists in cases where the grounds of objection go 
to the validity of the probate and involve no contested 
point of fact necessary to be determined by a jury on an 
issue of devisavit vel non. Wall v. WM, 64 Am. Dec*, 
147, a c. 30 Miss., 91. But the power should be cau- 
tiously exercised, and it should require a much stronger 
case to justify the revocation of a probate already grant- 
ed than merely to show such a state of facto as would 
justify the rejection of the will in the first instance, 
since the application for revocation suggests an im- 
peachment of the original proceedings." 

Mr. Pritchard in the next section (323) enumerates 
instances in which the probate of wills has been re- 
voked and the same will re-probated. The author, in 
section 324, then announces this rule: 

"The time within which application for revocation of 
a probate must be made is probably limited to twenty 
years in the case of a will of personal estate; but there 
is probably no limitation in the case of a will of land" 
— citing Toumsend v. Totcnsend, 4 Cold., 70, 94 Am. 
Dec, 185; Oihson v. Lane, 9 Yerg., 475. 

The same author in section 316 says : 

"There was no limitation at common law, and very 

119 Tenn— 3 



34 TENNESSEE REPORTS. [119 Tenn. 

Grier v. Canada. 

nncient wills have been admitted to probate; it being 
understood that not less than thirty years would bar a 
probate. . . . 

"But, w^hen there is a great delay in presenting a will 
for probate, its probation will not be allowed to affect 
the oi)eration of the statute of limitations, so as to dis- 
turb vested rights protected by the running of the stat- 
ute." See, also, section 351, Id. 

It will be observed that the object of the re-probate 
In the present instance was not to annul the original 
probate, but was to supply formalities that were omitted 
in the former order. It was rather an ancillary pro- 
ceeding thjin one to destroy the original probate. The 
re-probate of this will at the December term, 1905, of 
the county court, was in our opinion clearly authorized, 
and is sufficient to make out a prima faoie case in favor 
of the right of John M. Grier to recover the land in 
controversy. In the present state of the record, the bur- 
den of proof devolved on the defendant and appellant 
to show that this will was not valid for fraud, accident, 
or mistake. 

We think, however, upon the facts disclosed in this 
record, appellants are estopped from impeaching the 
sufficiency of the probate proceedings. The fact is es- 
tablished that appellants have been claiming the land 
in controversy, under the will thus sought to be im- 
peached, for nearly twenty years. It appears that on 
October 25, 1889, the appellant W. R. Canada filed a 



11 Gates] APRIL TERM, 1907. 35 

Grier ▼. Canada. 

bill concerning the land in controversy in which he made 
the following allegation : 

"The said Abner M'. Grier, the former owner of said 
land, died in February, 1886, leaving his last will and 
testament, which was duly probated in the county court 
of Gibson county, Tenn. (the place of his death), shortly 
thereafter, and a certified copy of the same will be filed 
on or before the hearing as evidence. By this will the 
land aforesaid was devised to his son and only heir at 

law, complainant J. P. Grier, and on the day of 

, 188—, the said complainant J. P. Grier sold and 

conveyed the said land to complainant W. R. Canada," 
etc. 

It thus appears that J. P. Grier was the complainant 
in this bill, and that he claimed to have acquired the 
title to this land under the will of his father. W. R. 
Canada joined in these allegations, claiming under said 
will, and through J. P. Grier as devisee under the will. 
It appears that this bill was still pending when the land 
in controversy was re-conveyed to the defendant Mrs. 
S. L. Canada by T. J. Gordon, thus constituting a lis 
pendens. But the following additional fact appears 
in the record, to-wit : On Maxch 10, 1894, W. R. Canada 
and his wife, Mrs. S. L. Canada, filed another bill in 
the chancery court of Gibson county touching the same 
land in controversy. In this bill Mrs. S. L. Canada 
joins and quotes with approval the allegations already 
quoted in the former bill concerning the will and its 
probate. The former bill was substantially quoted, and 



36 TENNESSEE REPORTS. [119 Tenn. 

Grier y. Canada. 

it is then recited that Mrs. Canada, together with her 
husband, ^'adopt the said charges of the said bill herein- 
before quoted, and do adopt said bill.'' 

Thus we find solemn admissions by both of these ap- 
pellants in a judicial proceeding touching the title and 
]>ossession of this land. In one bill W. R. Canada 
claimed under the will of A. M. Grier, and in the second 
bill his wife joined him in reiterating the same claim. 
It was alleged by both that A. M. Grier died leaving a 
last will and testament, and that the same was duly 
probated in the county court of Gibson county, and that 
the land involved in this suit was devised to his son, J. 
P. Grier. These allegations are sworn to by both of 
these appellants. These allegations were made under 
oath in 1888, and again in 1894. 

A party will not be permitted to deny in one pro- 
ceeding facts which he has admitted or averred in his 
solemn pleadings under oath in another proceeding. 
Chilton V. Scruggs, 5 Lea, 318. 

Where certain statements are made by a party in a 
sworn bill, he is estopped from denying those statements 
in any subsequent proceeding, or from asserting the 
contrary to be true. Stephenson v. Walker, 8 Baxt., 
289. Hamilton v. Zimmerman, 5 Sneed, 39. 

The same rule of estoppel applies where a party has 
testified to certain facts in a deposition taken in the 
course of judicial proceedings. StiUman v. Stillman, 
7 Baxt, 175; Cooley v. Steele, 2 Head, 605. 

We are therefore of opinion that appellants, on iic- 



11 Gates] APRIL TERM, 1907. 37 

Grier v. Canada. 

count of the recitals and solemn admissions under oath 
in their former pleadings, are now estopped to deny the 
valid execution of the will of A. M. Grier or the regu- 
larity of the probate proceedings. 

Counsel for appellants, in the course of his argument, 
invokes the doctrine of innocent purchai^r on behalf of 
his clients; but this defense is not made either by the Q,n- 
swer or special plea. Dunham v. Harvey, 111 Tenn., 620, 
69 S. W., 772. Nor was there any error in the action of 
the chancellor in declining to permit the plea of innocent 
purchaser to be filed after all the proof had been taken 
and the case was about to be tried. This was a matter 
that addressed itself to the sound discretion of the chan- 
cellor, and his action in disallowing the plea will not be 
reviewed. 

The next assignment is that the chancellor erred in 
decreeing that complainant was the owner of the home- 
stead in the sixty-five acres of land assigned to Brewer 
and wife. It is said the chancellor should have decreed 
that Mrs. Canada was the owner of said homestead. In 
this connection will be considered the following as- 
signments of error : 

(a) The court erred in excluding deed from J. L. 
Clark and wife to Mrs. S. L. Canada, conveying said 
homestead. 

(b) The court erred in the admij^sion of the record 
in the case of W. R. Canada v. Clark et al, from the 
chancery court of Gibson county. 

(c) The court erred in the admission of the record in 



38 TENNESSEE REPORTS. [119 Tenn. 



Grler v. Canada. 



the case of Chravitt v. Gravitt from the chancery court 
at Trenton, Tenn. 

j The homestead in question, comprising about sixty- 
five acres, was assigned to Brewer and wife in the year 
1875, in the case of Carthel v. Breicer^ pending in the 
chancery court^of Gibson county. It was a part of the 
160 acres of land in controversy, and the balance of th« 
tract, including the remainder interest in the homestead, 
was sold to S. A. Grier. In November, 1875, S. A. Grier, 
for the consideration of |1',000, executed a quitclaim 
deed to A. M'. Grier covering his interest in the 130-acre 
tract of land. It thus appears that A. M. Grier became 
the owner of the 130-acre tract of land subject to the 
homestead interest of Brewer and wife, and he still own- 
ed said property at the date of his death. 

It further appears that, after the assignment of the 
homestead to Brewer and wife, Mrs. Brewer died, and 
shortly thereafter Mr, Bi-ewer entered into another mar- 
riage. In 1883 Mr. Brewer died, and his widow, in the 
latter part of 1885, entered into a marriage with one 
Gravitt. In 1886 Gravitt procured a divorce, and subse- 
quently, in the year 1886 or 1887, Mrs. Gravitt, formerly 
Mrs. Brewer, entered into a marriage with one Clark, 
In 1894 Clark and his wife, being in possession of the 
homestead which had been originally assigned to Brew- 
er and wife, sold and transferred the same to Mrs. S. 
L. Canada for the consideration of |225. It appears 
that Mrs. Canada held and occupied this homestead un- 



11 Gates] APRIL TERM, 1907. 39 

Orier v. Canada. 

der the conveyance from Clark and wife for nearly twelve 
years prior to the filing of the bill in this canse. 

As already seen, the chancellor decreed that complain- 
ant was entitled to recover possession of this homestead, 
and that he was so entitled to the same upon the death 
of J. P. Grier, in February, 1899. 

When the defendants offered in evidence the deed of 
J. L. Clark and wife to S. L. Canada, objection was 
made on behalf of complainant to said deed, for the 
reason it appeared from the proof that the said M. J. 
Clark was divorced from her husband William Gravitt, 
on account of adultery with J. L. Clark, and it further 
appeared that at the time this paper was executed she 
was still living in adultery with the said Clark, and that 
it thus appeared from the proof that said deed was made 
in violation of the nonalienation statute of Tennessee, 
and that the alleged deed was absolutely void by the ex- 
press provisions of the statute. This objection was sus- 
tained by the court, and said deed was excluded, and 
not permitted to be read in evidence, to which action of 
the court the defendants excepted at the time. 

The section of the Code invoked is found at section 
4227, Shannon's Code, as follows: 

"After a divorce for adultery on the part of the wife, 
if she afterwards cohabit at bed and board with the 
adulterer, she shall be incapable of alienating directly 
or indirectly any of her lands; but all deeds, wills, ap- 
pointments, and conveyances thereof, by her made, shall 
be void and of no effect; and after her death the same 



40 TENNESSEE REPORTS. [119 Tenn. 

Grier ▼. Canada. 

shall descend/ and be subject to distribution, b& if she 
had died seized and possessed thereof intestate.'' 

In Prater v. Prater, 87 Tenn., 78, 9 S. W., 361, 10 Am. 
St. Rep., 623, it was held that a woman who without 
cause had deserted her husband, and eloped with another 
man, and taken up permanent residence with him in 
another State, and there continued to live in adultery 
with him until after her husband's death, forfeits her 
right as widow in the lands owned by her husband at 
his death. See, also, Freeman v. Freeman, 111 Tenn., 
151, 76 S. W., 82S 

It will be observed in the present case that these pro- 
visions of the law are invoked to work a forfeiture of the 
homestead right of Mrs. Clark upon the ground of her 
alleged adultery with J. L. Clark while she was wife 
of Oravitt. Counsel for complainant also relied on the 
fact that an abandonment of this homestead by Mr^. 
Gravitt, or Mrs. Clark, is disclosed by this record. It 
is well settled that our homestead and exemption laws 
are for citizens only, and not for nonresidents, and the 
homestead is abandoned or forfeited when the occupant 
becomes nonresident Garrigan v. Rotc^ll, 96 Tenn., 
185, 34 S. W., 4; Fatris v. Sipes, 99 Tenn., 300, 41 S. W., 
443; Coile v. Hudgins, 109 Tenn., 220, 70 S. W., 56. 

It is also well settled that homestead, when assigned, 
is transferable as a life estate. Cotcan v. Carson, 101 
Tenn., 523, 50 S. W., 742; Delk v. Yelton, 103 Tenn., 
480, 53 S. W., 729; McCrae v. MoCrae, 103 Tenn., 721, 
54 S. W., 979. 



11 Gates] APRIL TERM, 1907. 41 

Orier v. Canada. 

Since the act of 1879 (Laws 1879, p. 213, c. 171) the 
right of homestead is not dependent upon occupancy, 
and hence assigned homestead is not abandoned by re- 
moYal from the premises, except by permanent removal 
beyond the limits of the State. Briscoe v. Vaughn, 103 
Tenn., 311, 52 S. W., 1068, 

Mrs. S. L. Canada testified that Mrs. M. J. Gravi^t 
lived with William Gravitt but a few days, when she 
eloped with Clark and removed to the State of Missouri, 
where she lived with Clark for several years. It ap- 
pears from the record that William Gravitt filed a bill 
for divorce against his wife, Mrs. M. J. Gra\itt, and 
there was publication for her as a nonresident. It was 
also adjudged in that case that Mrs. Gravitt had com- 
mitted adultery with J. L. Clark while the wife of Wm. 
Gravitt 

We are of opinion that the homestead was abandoned 
and forfeited by Mrs. Clark in 1886, when she became 
a nonresident of Tennessee and eloped with J. L. Clark 
to Missouri, where she resided for several yeara 

It does not affirmatively appear from the record that 
William Gravitt was living at the date of the marriage 
of his divorced wife with J. L. Clark, nor does it appear 
that he was living at the date of the deed by J. L. Clark 
and wife, conveying this homestead to Mrs. S. L. Canada. 
It does appear that William Gravitt was living when the 
divorce wi^s granted, and in the absence of proof the pre- 
sumption of continued life would arise. The record of 
the divorce proceeding by William Gravitt against M. L. 



42 TENNESSEE REPORTS. [119 Tenn. 

Gricr v. Canada. 

Gravitt, his wife, was properly admitted in evidence, 
and the record shows that. Mrs. Gravitt had become a 
nonresident of the State of Tennessea It is true the 
whole of that record was not produced; but a certifi- 
cate of the clerk and master accounts for the absence 
of the balance of the record, and renders that part of 
it adduced competent Russell v. Houston, 115 Tenn., 
536, 91 S. W., 192. 

Mrs. S. L. Canada and her husband, in a bill filed 
by them in 1894 against Clark and wife for the pur- 
pose of avoiding the homestead, alleges that Mrs. Clark 
left this tract of land and moved to Missouri "with no 
intention of ever returning to it or using it as her 
home." Again they allege "she voluntarily and perma- 
nently deserted her husband and home, eloped with 
another man, and lived with him out of the State for 
a long period of years." It is further alleged in that 
bill that the return of Mrs. Clark to Tennessee and 
to this tifact of land "was an afterthought." 

No evidence is introduced on behalf of appellants 
to explain or overthrow the evidence on the part of the 
complainants tending to show that Mrs. M. J. Gravitt 
was a nonresident of the State of Tennessee. 

We think it unnecessary to pass upon the question 
of the forfeiture of this homestead on account of the 
adultery of Mrs. Gravitt with J. L. Clark, but base our 
decision of the forfeiture of homestead exclusively upon 
the proof of the nonresidence of Mrs. Gravitt. 

Affirmed. 



11 Gates] APRIL TERM, 1907. 43 

Humphrey y. Oodsey. 



Lena Humphrey et al. v. A. Godsey. 

. {Jackson. April Term, 1907.) 

1. COUBT OF CIVIL APPEALS. Jorisdictioxial amount is de- 
termined by amount actually in controTersy upon appeal. 

The appellate Jurisdiction as between the supreme court and 
the court of civil appeals, when dependent upon the amount 
involyed, is determined by the amount really or actually in 
controyersy in the appellate court, and not by the amount 
involved in the court below. 

Acts cited and construed: Acts 1907, ch. 82, sec. 7. 

d. BAJOB. Same. Broad appeal will not give supreme court jur- 
isdiction, ii controverted amount is lees than the jurisdictional 
amount. 
The appellant cannot appeal from that part of the decree of 
the chancery court which was in his favor, merely for the 
purpose of giving the supreme court jurisdiction. A broad ap- 
peal does not open the whole controversy involved in the chan- 
cery court so as to give the supreme court jurisdiction, where 
the chancery decree eliminated everything in favor of the ap. 
pellant, except the sum of one hundred and fifty dollars. 



PROM SHELBY. 



Api)eal from the Chancery Court of Shelby County.— 
F. H. Heiskbll, Chancellor. 

' W. H. Cox and Byabs, King & Capell^ for com- 
plainants. 

J. P. Sykes, for defendant. 



44 TENNESSEE REPOBTS. [119 Tenn. 

Humphrey v. Gk>dBe7. 

Mr. Justice Neil delivered the opinion of the Court. 

The question to be determined in this case is whether 
this court has jurisdiction of the controversy, or 
whether the case falls within the jurisdiction of the 
court of civil appeals. Section 7 of the act [published 
Acts 1907, ch. 82], creating that court provides: 

"That the jurisdiction of said court of civil appeals 
shall be appellate only, and shall extend to all cases 
brought up from courts of equity or chancery courts, 
except cases in which the amount involved, exclusive 
of costs, exceeds one thousand dollars, and except cases 
involving the constitutionality of the statutes of Ten- 
nessee, contested elections for ofllce. State revenue, and 
ejectment suits, and to all civil cases tried in the cir- 
cuit and common law courts of the State, in which 
appeals in the nature of writa of error, or writs of 
error may be applied for, for the purpose of having 
the action of said trial court reviewed. In all cases in 
which appellate jurisdiction is herein conferred upon 
said court of civil appeals, the appeals and appeals in 
the nature of writs of error from the lower court shall 
be taken directly to said court of civil appeals; and 
said court, or any judge thereof, is hereby given the 
same power to award and issue wTits of error, certiorari 
and supersedeas^ which the supreme court has hereto- 
fore had in such cases, returnable to said court of 
civil appeals. The practice in such cases in said court 
shall be the same as is now prescribed by law for the 
supreme court. In all cases in which appellate jurisdic- 



11 Gates] APRIL TERM, 1907. 45 

Humphrey ▼. (lodsey. 

Hon is not conferred by the terms of this act upon 
said court of civil appeals, appeals therefr(»n shall 
be direct to the supreme court, and in such cases, writs 
of error, certiorari and supersedeas shall be issued by 
and made returnable to the supreme court, as is now 
provided by law; and in such cases the supreme court 
shall have exclusive jurisdiction, and shall try and 
finally determine the same, and shall not after thia 
act takes effect, assign the same for trial by the said 
court of civil appeals/' 

The bill in this case alleges that the complainant, 
Lena Humphrey, while yet a minor, purchased from 
the defendant, Godsey, a lot in the city of Memphis, 
for the consideration of f 1,700, and paid him therefor, 
fl50 in cash, and executed sundry notes to cover, the 
deferred payments; that she desired, on the ground of 
her infancy, to disaffirm the said contract, to have the 
notes canceled, and the f 150 in cash repaid to her. 

The answer interposes the defense that the complain- 
ant had induced the defendant to execute the deed, and 
to receive the money and the notes by stating to him 
that she was of full age, and that she had thereby prac- 
ticed a fraud upon him. 

The chancellor rendered a decree allowing the dis- 
affirmance of the sale, and canceling all of the notes, 
but he refused to grant a decree for the return of the 
money. 

The complainant prayed a broad appeal from the 
decree of the chancellor, but in this court, assigned 



46 TENNESSEE REPORTS. [119 Tenn. 

Humphrey v. Godsey. 

errors only upon the action of the chancellor in refus* 
ing to decree a repayment of the f 150 cash, and upon 
certain errors in the admission of evidenca The de- 
fendant assigned errors only upon the disposition made 
of the costs. 

The question to be determined is whether the mat- 
ter in controversy was less than fl^OOO. The complain- 
ants insist that, inasmuch as they prayed a broad ap- 
peal, the whole controversy set forth in the bill is 
before us, and the amount of the consideration money 
being f 1,700, the amount involved is within our juris- 
diction. We are of the opinion, however, that the com- 
plainants could not appeal from that portion of the 
decree which wte in their favor, merely for the purpose 
of giving this court jurisdiction. The jurisdiction is 
deter^lined by the amount bona fide in controversy in 
the appellate coui^t, not the amount in the court below. 

The real matter in controversy, on the present ap- 
peal, is the action of the chancellor in refusing to 
decree a return of the |150 composing the cash payment. 
This being true, the case falls within the jurisdiction 
of the court of civil appeals, and must be stricken from 
the docket of this court, and it is so ordered. 



CASES 

ABGUED AND DETERMINED 

IN THB 

SUPEEME COUET OF TENNESSEE 



WESTERN DIVISION. 



JACKSON, SPECIAL SEPTEMBER TERM*, 1907. 



State of Tennessee v. Muncie Pulp Company et ah* 
{Jackson, Special September Term, 1907.) 

1. STATB BOUNDARIES. Western boundary of TexmesBee de- 
fined. 
The western boundary line of the State of Tennessee is the 
"middle of the Mississippi river" as it ran in 1763, as declared 
and fixed by treaties and legislative enactments. {Post, pp. 
64, 65, 68, 69, 70, 71, 75, 76, 109.) 



•As to title to land under water, see note to Goff v. Cougle 
(Mich.). 42 L. R. A., 61. 

•As to title to islands, see note to Holman y. Hodges (Iowa), 
58 L, R. A., 673. 

•As to effect of sudden submergence upon title to land, see note 
to (Chicago V. Ward (111.), 38 L. R. A., 849. 



48 TENNESSEE REPORTS- [119 Tenn. 

state v. Pulp Go. 

Statutes, treaties, etc., cited: 3 Jenkinson's Treaties, 177; 2 
Cobb & Haywood's Compilation, pp. 1, 7-10; 1 Stat, chs. 6 and 
47; 8 Stat, 81, 82. 

Constitution cited and construed: Art 1, sec. 31. 

Cases cited and approyed: Iowa t. lUii^ois, 147 U. S., 2; Louisiana 
T. Mississippi, 202 U. 8:, 41. 

2. 8AMB. Same. Oongress has no power to change State 
boundaries. 
The western boundary line of the State of Tennessee, at the 
time of its admission into the union as a State in 1796 (1 Stat, 
ch. 47), being fixed as the "middle of the Mississippi river" as 
It ran in 1763, the designation of the eastern boundary line of 
the State of Arkansas as the "middle of the main channel of 
the Mississippi rlTer," made in the act of congress, at the time 
of Its admission into the union as a State in 1836 (Stat, ch. 
100), could not have been intended to designate a different 
boundary line than that of Tennessee as it then existed, because 
congress had no power to change the boundaries of Tennessee 
as fixed by it when that State was admitted to the union In 
1796. (Post, pp. 66-69.) 

Constitution of the United States cited and construed: Art 4, 
sec. 3. 

Case cited and approved: Louisiana v. Mississippi, 202 U. S., 
40. 

8. SAMB. Same. Same. Hain channel means the larger chan- 
nel, where there are two or more channels. 
The words "main chaxmel" used in the designation of the east- 
ern boundary line of the State of Arkansas as the "middle of the 
main channel of the Mississippi river" were evidently intended 
to make the common boundary more definite by designating the 
larger channel, where there existed two or more channels, on 
account of the numerous Islands to be found in the river. 
(Post, pp. 68, 69.) 



U Gates] SPECIAL SEPTEMBER TERM, 1907. 49 

State ▼. Pulp Co. 

4. 8TBEAHS, Ohaanel and bed of a river mean the same thin^, 
and mean the depression in which the water flows. 
The channel of a river and the bed of a river ordinarily mean 
the same thing, and are understood to describe that depression 
of the earth's surface in which the waters of the stream are 
confined and flow in its ordinary stages, unaffected by freshets 
or droughts. {Post, p. 72.) 

Cases cited and approved: Branham v. Turnpike Co., 1 Lea, 704; 
Howard v. Ingersoll, 13 How. (U. 8.), 381; Alabama v. Qeorgia, 
23 How. (U. S.), 505; Houghton v. Railroad, 47 Iowa, 870; 
Bridge Co. v. Dubuque, 55 Iowa, 558; Cesslll v. State, 40 Ark., 
504; Railroad v. Ramsey, 53 Ark., 314; Stover v. Jack, 60 Fa., 
339; Lux v. Haggin, 69 Cal., 417; Larrebee v. Cloverdale, 131 
Cal., 96; Benjamin v. River Improvement Co., 42 Mich., 628. 

6. INTERNATIONAL LAW. Not to annul agreement of the 
partiesy when. 
General rules of international law cannot be Invoked, where the 
matter in question has been settled otherwise by the parties 
in interest, either by agreement, convention, acquiescence, or 
long and undisturbed occupancy and possession. iPogt, p. 
91.) 

6. BULE8 OF P&OPBBTT. Construction as to the meaning of 
the <*middle of the Mississippi river" has become a rule of prop- 
erty. 
The construction of the words "middle of the Mississippi river^ 
to mean a line along the middle of the main channel or bed of 
the river equidistant from the visible, defined, and substantially 
established banks within which the waters are confined and 
flow in their natural and ordinary stages, and not the middle of 
the channel of commerce^ has become a rule of property and 
should not be disturbed. {Post, pp. 91*93.) 

119 Tenn— 4 



60 TENNESSEE REPORTS. [119 Tenn. 

state T. Pulp Co. 

7. NAVIGABLB STREAKS. Bi^ht of navigation by both 
States in a river separatingr them. 

Where a navigable river constitutes the boundary line between 
two States, the middle of the channel separating their respective 
jurisdictions as defined in the first and tenth headnotes, both are 
presumed to have the free use of the whole of it for the purposes 
of commerce. The whole river is of right common to both 
nations as a public highway. (Po9t, pp, 93, 94.) 

Cases cited and approved: The Apollon, 9 Wheat. (U. S.), 362» 
371; Handly v. Anthony, 5 Wheat. (U. S.), 374. 

8. MISSISSIPPI BIVEB. Free navigration secored by treaties, 
acts of congress, and State constitutions. 

The free navigation of the Mississippi river by the citizens of 
the United States was expressly provided for and preserved in 
the treaty made by the United States with Great Britain in 
1783, and again in that made by the United States with Spain in 
1795. This right of navirration has been frequently declared by 
acts of congress, and is asserted in the constitutions of all the 
States bordering on said river. The right Is so well established 
that no possible apprehension can be entertained that it will be 
interfered with. {Post, p. 94.) 

Constitution cited and construed: Art. 1, sec. 29. 

Numerous acts of congress cited on page 94. 

9r SAMB. Same. Free navigation secured by the commerce 
clause of the federal constitution. 
The commerce clause of the constitution of the United States, 
all other things aside, affords ample protection to the right of 
every citizen to the free navigation of the river, whether the cup- 
rent be in one State or another, without fear of hindrance or 
burdens imposed by such States. {Post, pp. 94, 96.) 

10. STATE BOUNDARIES. Western boundary of Tennessee is a 
line in the middle of the Mississippi river equidistant from its 
banks. 

The western boundary line of the State of Tennessee, declared 
and fixed by treaties and legislative enactments (as shown in 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 51 
state V. Pulp Co. 



the first headnote) to be the "middle of the Mississippi river/' 
means a line along the middle of the main channel or bed of the 
river equidistant from the visible, defined, and substantially 
established banks within which the waters are confined and fiow 
in their natural and ordinary stages, and does not mean the 
center of that part of the river which is deepest, and consti- 
tutes the channel of commerce. (PoH, pp, 69-95.) 

Acts cited and construed: Acts 1903, ch. 420. 

Cases cited and approved: Branham v. Turnpike Co., 1 Lea, 706; 
Cessill V. State, 40 Ark., 501; Jones v. Soulard, 24 How. (U. S.), 
41; School V. Risley, id Wall. (U. S.), 91; Missouri v. Kentucky, 
11 Wall. (U. S.), 395; St Louis v. Rutz, 138 U. S., 226; Ne. 
braska v. Iowa, 143 U. S., 359, 361, 367; Missouri v. Nebraska, 
196 U. S., 23; Myers v. Perry, 1 La. Ann., 372; Morgan v. 
Reading, 3 Smedes ft M. (Miss.), 366; Bridge Co. v. Dubuque 
Co., 55 Iowa, 558. 

Cases cited and distinguished: Iowa v. Illinois, 147 U. S., 1; 
Buttenuth v. Bridge Co., 123 111., 535. 

11. SAMS. Same. Boundary line between Tennessee and Arkan- 
sas settled by convention, decision, legislation, and other acts 
and acquiescence. 
The boundary line between the States of Tennessee and Arkansas, 
as fixed and defined in the first and tenth headnotes, has been 
settled by the duly constituted authorities of said States by 
judicial decisions, legislation, and other authorized oflicial ac- 
tions, long acquiescence, the exercise of jurisdiction unchal- 
lenged, and other acts amounting to an agreement or convention. 
The establishment of the boundary line between said States in 
such manner is binding on them, and others cannot be heard 
to complain. {Post, pp. 72, 73, 95, 96.) 

Acts cited and construed: Acts 1903, ch. 420. 

Cases cited and approved: Cessill v. State, 40 Ark., 501; In- 
diana V. Kentucky, 136 U. 8., 479. 



52 TENNESSEE REPORTS. [119 Tenn. 

State T. Pulp Co. 

18. HAVIGABLE STBBAMS. Tennessee acquired Utle to floU to 
the center of the KiMiseippi river. 
Tennessee acquired title to all the soil under the water of 
the Mississippi river to the limits of her jurisdiction, for the 
reason that the soil under the water of a navigable river, as well 
as the water, is held by the State for the use and in trust for 
the public, so long as the river continues to be navigable. iPost, 
p. 96.) 

18. SAME. Grants by the United States on navigable streams are 
limited by high water mark, and the soil between that and the 
middle of the river is vested in the State. 

Grants made by the United States for its lands lying upon nav- 
igable streams to private parties are limited by high water 
mark, and the soil between that and the river and under the 
waters is vested in the State in which it lies. The State may 
dispose of this property at its discretion, subject to the general 
control of congress over all navigable waters. (Post, pp. 96- 
99.) 

Case cited and approved: Hardin v. Jordan, 140 U. S., 371, 372, 
and citations. 

14. SAME. State grants extend to low wat«»r marks only, and the 
title to the bed of the stream remains in the State. 

In Tennessee it has been uniformly held that grants for lands 
lying upon navigable streams extend to ordinary low water mark 
only, and that the title to the bed of the steam remains in the 
State. {Post, pp. 99, 100.) 

Cases cited and approved: Martin v. Nance, 3 Head, 649; Hol- 
bert V. Edens, 5 Lea, 204; Posey v. James, 7 Lea, 98; Goodwin 
V. Thompson, 15 Lea, 209; Stockley y. Cissna, 119 Fed., 829; 
Taylor v. Commonwealth, 102 Va., 759; Holman v. Hodges, 112 
Iowa, 714. 

16. SAME. Islands formed in navigable streams belong to the 
State. 
It is well established law that when the waters recede or land 
is formed upon the bed of navigable rivers, as in case of islands. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 68 

state T. Pulp Co. 

the property In such land is in the State to be disposed of by It 
as Its authorities may determine and direct iPott, pp. 100* 
103.) 

Case cited and approved: Packer r. Bird, 137 U. S., €66.672; 
Hardin t. Jordan, 140 U. S., 371, 872; Morris y. Brooke (I>eL)» 
cited in Mulry t. Norton, 53 Am. Rep. 216, note. 

16. 8A1EB. Land lonning in the Mississippi river east of the 
State's western boundary belongs to the State, when. 

The soil under the Mississippi rlTor, east of the western bound* 
ary of the State of Tennessee belongs to that State, and when- 
ever the water ceases to flow over it, and it is no longer suitable 
or required for the purposes of navigation. If not done imper- 
ceptlbly and in process of accretion, it may be taken in posses- 
sion, and disposed of by the State as her authorities may see 
fit iP08t, p. 103.) 

17. STBBAM8. Ohange of channel by erosion and accretion. 
Where the change in the channel of a river is made insensibly, 

by gradual and Imperceptible washing away of one shore and 
the formation in like manner upon the other shore, it is said 
to be ''by erosion and accretion." (Post, pp. 103, 124.) 

18. SAME. Change of channel by avulsion. 

Where the change to the channel of a river is made suddenly and 
violently, and is visible, and the effect is certain, it is said to 
be by avulsion. {Post, pp. 61, 103, 104.) 

19. SAME. Effect of alteration of channel by erosion and accretion 
and by avulsion. 

Where the boundary line between individuals, as well as States 
and nations, is marked by a stream, and the location of the 
stream is altered by erosion and accretion, it continues to be 
the boundary line; but when the alteration occurs as the result 
of an avulsion, no change is made, but the limits of private 
estates or national territory and Jurisdiction remain as before. 
(Post, pp. 104-110, 124.) 



54 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

Gases cited and approved: Moss y. Gibbs, 10 Heisk., 283; Posey 
T. James, 7 Lea, 98; Missouri v. Kentucky, 78 U. S., 410; Indiana 
T. Kentucky, 136 U. S., 508; Nebraska t. Iowa, 143 U. S., 360, 
and citations; Missouri y. Nebraska, 196 U. S., 23; Stockley y. 
Cissna, 119 Fed., 812; Rees y. McDaniel, 115 Mo., 145; Holbrook* 
y. Moore,* 4 Neb., 437; Collins y. State, 3 Tex. App., 323; But- 
tenuth y. Bridge Co., 123 111., 546. 

20. SAKE. Change in the bed of the Hississippi river that was an 
avulsion, not changing State boundary. 

The change made in its channel by the Mississippi riyer in 1876 
at Centennial Cut-Off was an ayulsion, and the boundary line 
between the States of Tennessee and Arkansas remained where 
it was originally fixed, in the middle of the abandoned channel, 
and the rights of indiyiduals who owned lands lying and abutt- 
Ing upon it remained as before the formation of the new chan- 
nel, for the reason that the change was yisible, accompanied 
with great and uncontrollable force and violence, and occurred 
within less jthan two days, with certain and inevitable ultimate 
effects, shortening the river nearly twenty miles, occupying 
nearly two thousand acres in the new bed of the usual width of 
the river. {Post, pp. 61, 103, 104, 109, 110.) 

21. BOUNDARIES. Presumption of permanency. 

The presumption is in favor of the permanency of boundary 
'lines, and the burden of proof is upon the party averring that 
the location of a line has been changed by the action of the 
forces of nature. (Post, pp. 112, 122.) 

22. STBEAMS. Evidence insufficient to show accretions. 
Evidence stated, reviewed, and held not to show accretions to 

Dean's Island previous to 1876. (Post, pp. 104-122.) 

28. SAME. Filling up of old channel is not by accretion, when. 
The doctrine of accretions has no application to the filling up 
of the old channel of a stream, abandoned by the stream for a 
new one, as the result of an avulsion. (P(Mt, pp. 122-130.) 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 56 

state V. Pulp Co. 

Cases cited and approved: Missouri v. Kentucky, 11 Wall. (U. 
S.), 395; Indiana y. Kentucky, 136 U. S., 479; Nebraska v. Iowa, 
143 U. 8., 360; Willey v. Lewis. 28 Wkly. Law Bui.. 104 (Ohio); 
Hughes V. Bimey, 107 La., 664; Mulry v. Norton, 100 N. Y., 
426. 

M. SAMS. Land lost by submergence regained by reliction; land 
eroded restored by accretion. 
Land lost by submergence may be regained by reliction, and its 
disappearance by erosion may be returned by accretion, upon 
which the ownership temporarily lost will be regained. {Post, 
pp, 130, 131.) 

Cases cited and approved: St. Louis v. Rutz, 138 U. S., 226-246; 
Hardin v. Jordan, 140 U. S., 382; Stockley v. Cissna, 119 Fed., 
831; Mulry v. Norton, 100 N. Y., 426; Morris v. Brooke (Del.), 
cited in Mulry v. Norton, 53 Am. Rep., 215. note; Hughes v. 
Bimey, 107 La., 664. 

26, BOUNDARIES. Line between Tennessee and Arkansas es- 
tablished in middle of old channel as in 1838. 
The boundary line between the States of Tennessee and Arkansas 
is declared to be a line to be run along the old channel midway 
between the banks as they existed in 1823, as shown by the 
Humphreys map reproduced on page 60. as this is the earliest 
record of the location of the banks, and there is no evidence 
of their location in 1763. (Post, pp. 109, 110. 131-133.) 

26. OHANOBBY PLEADING AND PBACTIOE. Supreme court 
may give permission to amend bill upon remandment alter 
overruling plea in abatement. 
When the plea in abatement to the Jurisdiction of the court is 
heard upon issue and evidence, and is sustained by the chancel, 
lor. but is overruled by the supreme court, and the case is re- 
manded for hearing upon answer, the supreme court may direct 
that, if it is' desired, the bill may be amended so as to make 
the proper allegations to entitle complainant to recover other 
lands under the principles settled in the case. (Post, pp. 56-58, 
133, 134.) 



56 TENNESSEE REPORTS. [119 Tenn. 



state y. Pulp Co. 



FROM SHELBY. 



Appeal from the Chancery Court of Shelby County. — 
F. H. Heiskell^ Chancellor. 

Attorney-General Cates and Carroll, McEellar, 
BuLLiNGTON & BiGGS, fof the State. 

R. G. Brown and Thos. W. Bulutt, for Muncie Pulp 
Co. 

Caruthers Ewing, for Cissna. 



Mr. Justice Shields delivered the opinion of the 
Court. 

This suit was brought by the State of Tennessee 
against W. A. Cissna and the Muncie Pulp Company, 
in the chancery court of Tipton county, Tennessee, to 
recover about one thousand acres of land, chained in 
the bill to be situated in that county and then in the 
possession of W. A. Cissna, who claimed to own the 
same in fee, and the Muncie Pulp Company, his lessee. 
An injunction was also asked to stay waste in cutting 
and removing timber, being committed by the Mun- 
cie Pulp Company. These defendants made defense by 
plea in abatement to the jurisdiction of the court, in 



11 Gates] 8PECIAL SEPTEMBER TERM, 1907. 57 
state Y. Pulp Co. 

that the lands sued for were not situated in the State 
of Tenne&see, but in the State of Arkansas. The de* 
fendant Cissna in his plea says that these lands were 
formerly, about 1823, on the Tennessee side of the 
middle of the Mississippi river, which, as the river then 
ran, was and is the boundary line between Tennessee 
and Arkansas, but by gradual and imperceptible erosion 
ui>on the Tennessee bank, and accretion upon that of 
Arkansas, they became in the course of time and are 
now within and a part of the territory of the State of 
Arkansas. The defendant Muncie Pulp Company 
simply says the lands are not within the State of 
Tennessee, but w^ithin the boundaries and a part of the 
State of Arkansas. The defendants also filed answers 
to complainant's bill under an agreement of record 
that in so doing they would not waive their pleas to 
the jurisdiction of the court. The case, after issue, was 
by consent of parties transferred from the chancery 
court of Tipton county to that of Shelby county, and 
there heard by the chancellor upon the pleas in abate- 
ment and the proof offered by the parties upon the 
issues thus made. The chancellor was of the opinion 
that the case was with the defendants, and sustained 
the pleas and dismissed the bill. Complainant has ap- 
pealed from this decree and assigned error. 

The case is before us alone upon the question of ju- 
risdiction presented by the pleas in abatement, but the 
decision of this question necessarily involves the title 
of the complainant to the lands sued for, since she 



58 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

claims them as a sovereign State, under the same grants, 
treaties, and l^islation by which its western boundary 
is defined, declared, and established. The location of 
the boundary line between Tennessee and Arkansas, and 
the right of the former to recover the lajids in question, 
are practically the same question, and will therefore be 
considered together. 

The lands described in the bill and sought to be 
recovered confessedly were at one time, about 1823, 
under tlie waters of the Mississippi river. This is ad- 
mitted in the plea of W. A. Oissna, and is so clearly 
and conclusively established by the proof, that it is 
not now controverted by any one. The Mississippi at 
this point at that time and for many years thereafter 
made a great bend, forming a tongue or. peninsula ex- 
tending northwestward from a direct north and south 
line, the distance around which was more than twenty 
miles, but across the neck connecting it with Tennessee 
less than two miles. This peninsula was separated by 
McKenzie's Chute, an arm of the river, and the northern 
part was known as "Island 37." The whole, called 
"Devil's Elbow," was part of Tipton county, Tennessee. 
The river began this bend at the southern point or apex 
of Dean's Island, which was between the main channel 
of the Mississippi river and Barnay's Chute, and is a 
part of the territory of Arkansas, and property of the 
defendant W. A. Cissna, and ran first westward, then 
northward between Dean's Island and the main land 
of the peninsula and Island 37, then westward and 



11 Gates] SPECIAL SEPTEMBER TERM, 1907, 59 
state y. Pulp €k>. 

southward around Island 37, then in a northeastern 
direction until it came within about two miles of the 
place where it started northward, and then resumed its 
general course southward. The main channel of the 
river was at this time southwest and west of Dean's 
Island, about one mile, or ^ little less, in width. The 
location of the islands here mentioned and the course 
of the river are difficult to describe, and can best be 
seen and understood from an inspection of a map made 
by Maj. J. H. Humphreys, a civil engineer, a copy of 
which is exhibited with complainant's bill and here re- 
produced. See the following page. 

The river continued to run between Dean's Island 
and the peninsula and Island 37 opposite it until March 
7, 1876. Considerable changes, however, had taken 
place in its bed at this point in the meantime. The 
width of the channel, by erosion and caving in of the 
Tennessee bank south, southwest, and west of Dean's 
Island along the main land and Island 37, had increased 
from its former width to that of one and one-quarter 
miles or one and one-half miles, and a towhead, which 
seems to be a formation upon the bottom of the rirer, 
appearing at times, but not always above its surface, 
and neither a bar, nor yet land, had appeared off the 
apex of Dean's Island, a navigable chute running be- 
tween it and the island, and a sand bar and mud flats, 
only seen in very low water, had also formed in the 
river near the bank of that island, perhaps below the 
towhead. A steamboat reconnaissance of the river, 



60 



TENNESSEE REPORTS. [119 Tenn. 



state T. Pnlp Co. 



Hvatplwey'a limp, tihvwimt ««Bdltl«Ba of river la 1883 Im Iwowa. 




11 Gates] SPECIAL SEPTEMBER TERM, 1907. 61 
state y. Pulp Co. 



under the direction of the War Department of the 
United States, was made by Col. Suter in 1874, and a 
map of the place which we are now describing was 
prepared by him or his assistants and is in evidence. 
There is no proof of any material changes in tlie river 
between 1874 and 1876, and this map, while it is not 
shown to be altogether correct and accurate, may be 
said to present the general situation as it existed in 
the latter year. It is also here reproduced. See the 
following page. 

Upon the date referred to, March 7, 1876, the river 
suddenly and with great violence, within about thirty 
hours, made for itself a new channel directly across 
the neck opposite the apex of Dean's Island, then re- 
duced in width to about a mile, which new and shorter 
channel, thus made, it continues to occupy to this time. 
The new channel was called the "Centennial Cut-oflf,'' 
and the island made by it "Centennial. Island.'' The 
change of the channel, as stated, was sudden and vio- 
lent. About two thousand acres of valuable cultivated 
lands were swept away, with the farmhouses, ginhouses, 
and other improvements upon them, in a few hours^ and 
the inhabitants with difficulty saved their lives and per- 
sonal property. The old channel around the bend of 
the elbow was abandoned by the current of the river, 
but remained, for a few years, covered Avith dead water, 
becoming a lake or lagoon. It was no longer navigable, 
except in time of high water for small boats, and this 
continued only for a short time. The fall in the river 
around the elbow, from six to eight feet, was all con* 



:^S^ 




m- J*tA^ Iff 7, ■.»*«* A*« 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 63 
state V. Pulp Co. 

densed in the one mile of the cut-ofF, and made a strong 
current there. This, of course, di*ew the water from 
che old channel rapidly, and greatly reduced its depth. 
The old bed immediately began to fill with sand, sedi- 
ment, and alluvial deposits, and bars formed in it. It 
became dry land, Cottonwood and willow trees began 
to grow upon it, and it is now for the most part cov- 
ered with valuable timber and susceptible of cultivation. 
It is very valuable, both on account of the timber grow- 
ing upon it and the fertility of its soil. This suit is 
brought to recover a portion of the main channel lying 
between the middle of it, as it existed when the cut-off 
took place, and the Tennessee bank. The claim of the 
State is that its sovereignty and territory extended to a 
line drawn along the middle of the Mississippi river, 
and that, it being a navigable stream, it had title to the 
lands within its boundaries covered by the waters of 
the river, and, when the waters abandoned the bed, they 
remained its property, and it is entitled to recover them 
in this suit 

We will now proceed to consider this boundary of 
Tennessee and the title which she acquired and has 
to the lands claimed. The territory constituting the 
State of Tennessee, with perhaps small areas upon her 
northern and southern boundaries^ acquired by con- 
ventions with adjoining States, was originally the 
western part of the colony and State of North Carolina, 
and her boundaries are the same as they were befoi'e 
ceded by that State. Charles II of England, in the sec- 



64 TENNESSEE REPOETS. [119 Tenn. 

state ▼. Pulp Co. 

ond and effective royal charter of North Carolina, 
granted June 30, 1667, to Edward, Earl of Clarendon, 
and his associates, described the territory granted as 
"all that portion, territory or tract of land situated and 
being within our dominion of America aforesaid, ex- 
tending north and eastward as far as the north end of 
Currituck river or inlet upon a straight westwardly 
line to Wyonoke creek, which lies within or about the 
d^rees of thirty-six and thirty minutes northern lati- 
tude; and so west in a direct line aa far as the south 
seas, and south and westward as far as the degrees 
of twenty-nine inclusive of northern latitude, and so 
west in a direct line as far as the south seas, together 
with all and singular the ports, harbors, bays, rivers 
and inlets belonging in the province and territory afore- 
said, and also all the soils^ lands, fields, woods, moun- 
tains, farms, lakes, rivers, bays, islets situate or being 
within the bounds limits last before mentioned, etc." 
2 Cobb & Haywood's Compilation, p. 1, 

The western boundary of the territory granted was 
then unknown, but extended to the western boundary 
of the possessions of Great Britain in North America 
at that period. This boundary was, by the treaty be- 
tween Great Britain, France, and Spain, made in Feb- 
ruary, 1763, fixed irrevocably upon a line drawn along 
the "middle of the Mississippi river." 3 Jenkinson's 
Treaties, 177; Iowa v. Illinois, 147 U. S., 2, 13 Sup. 
Ct, 239, 37 L. Ed., 55; Louisiana v. Mississippi, 202 
U. S., 41, 26 Sup. Ct., 408, 50 L, Ed., 913. This line 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 65 
state T. Pulp Go. 

was afterwards recognized as the western boundary of 
\ the original thirteen States^ or those whose territory 
extended to the Mississippi river, in the treaty made by 
them with England September S, 1783. 8 Stat, 81, 82. 
Virginia and North Carolina then owned all the ter- 
ritory bordering upon the east bank of the Mississippi 
river from near its source to the southern boundary 
ofTTennessee, now composing the States of Illinois, Ken- 
tucky, and Tennessee, and afterwards ceded it to the 
United States for the purpose of forming new States 
to be admitted to the Union. North Carolina ceded 
her part of the territory in December, 1789, and au- 
thorized her senators in the congress of the United 
States to convey it, which they did February 25, 1790, 
and the conveyance was accepted by an act of congress 
passed for that purpose April 2, 1790. 1 Stat., 106, c. 
6. The territory ceded and conveyed is described in 
the cession act and conveyance ais follows: 

^'AU right, title and claim which this State [North 
Carolina] has to the sovereignty and territory of the 
lands situated within the chartered limits of this State, 
west of a line beginning on the extreme height of the 
Stone Mountain, at the place where the Virginia line 
intersects it, running thence along the extreme height 
of said mountain to the place where the Wautauga 
river breaks through it; thence a direct course to the 
top of the Yellow Mountain, where Bright's Road 
crosses the same; thence along th^ ridge of said moun- 

119 Tenn— 5 



66 TENNESSEE REPORTS. [Il9 Tenn. 

state V. Pulp Co. 

taiii; between the. waters of Doe river and the waters 
of Rock creek, to the place where the road crosses the 
Iron Mountain; from .thence along the extreme height 
of said mountain to where the Nolichucky river runs 
through the same ; thence to the top of the Bald Moun- 
tain ; thence along the extreme height of said mountain 
to Painted Rock, on the French Broad river; thence 
along the highest ridge of said mountain to the place 
where it is called the Great Iron or Smoky Mountain; 
thence along the extreme height of said mountain to 
the place where it is called Unicoi or Unaka Mountain, 
between the Indian towns of Cowee and Old Chota; 
thence along the main ridge of said mountain to the 
southern boundary of this Stata" Cobb & Haywood's 
Compilation, 7, 8, 9, 10. 

The inhabitants of this Territory, through their rep- 
resentatives, organized as a State and adopted a con- 
stitution February 6, 1796, which described the terri- 
torial boundaries of the new State of Tennessee in the 
language of the cession act; and this State, with this 
constitution, was by congress admitted into the union 
as a sovereign State June 1, 1796. 1 Stat, 491, c. 
•47. The act of congress does not define the limits of 
the State, further than to declare that it shall have 
and be composed of all the territory ceded by 
North Carolina and they are therefore controlled by 
the cession act and the constitution of the State. They 
are repeated in substantially the same language as in 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 67 
state V. Pulp Co. 

those instruments in the constitutions adopted in 1834 
and 1870. The description given in the latter is in 
these words: 

"That the limits and boundaries of this State being 
ascertained, it is declared that they are as hereinafter 
mentioned, that is to say, beginning on the extreme 
height of Stone Mountain at the place where the line 
of Virginia intersects it, in latitude thirty-ax degrees 
thirty minutes north, running then with the extreme 
height of said mountain [and then with other moun- 
tains therein stated and named] to the southern boun- 
dary of this State as described in the act of cession of 
North Carolina to the United States of America; and 
that all territory, land and waters, lying west of said 
line as before mentioned and contained within the 
chartered limits of North Carolina are within the limits 
and boundaries of this State, over which the people 
have the right of exercising sovereignty and the right 
of sale, so far as it is consistent with the constitution 
of the United States, the bill of rights, constitution of 
North Carolina, the cession act of said State and the 
ordinances of congress for the government of the ter- 
ritory northwest of the Ohio.'' Const. Tenn., art 1, 
sec. 31*, 

The general description of the boundaries of the 
State, preceding a specific description contained in the 
Code adopted in 1858 is in the language of the consti- 
tution. Code, sec. 60. In the same chapter (section 



68 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

69) the boundary between this State and the State of 
Arkansas is described as follows : 
I "The western boundary of the State of Tennessee is 
in the middle of the stream of the Mississippi river in- 
cluding within the State of Tennessee all such islands as 
are held under grants froiji the States of Tennessee and 
North Carolina." 

This section must be construed to mean the same as 
the cession act and provision of the constitution; other- 
wise it is invalid. Congress first authorized the Bt^te 
of Tennessee as its agent to dispose of all unappropri- 
ated and ungranted lands within its territory for cer- 
tain purposes, and afterr^'ards in 1846 released and sur- 
rendered to it all right and title of the United States 
to the lands within the State acquired by them from 
North Carolina then ungranted and unappropriated. 

The State of Arkansas as well as those of Missouri 
and Iowa were part of the territory of Louisiana owned 
at various times by France and Spain, and finally ac- 
quired by the United States from the former by pur- 
chase in 1803. Arkansas was admitted into the union 
as a sovereign State by an act of congress approved 
June 15, 1836 (5 Stat., 50, c. 100), and its eastern 
boundary was designated and defined as the "middle 
of the main channel" of the Mississippi river. This boun- 
dary is also embodied in the several constitutions of 
that State subsequently adopted. There is no diflFer- 
ence between the "middle of the Mississippi river," as 
the western boundary line of Tennessee is described, 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 69 
state V. Pulp Co. 

and the "middle of the main channel" of that river, as 
the eastern boundary line of Arkansas is defined. They 
mean the same thing, and the words "main channel" 
were evidently intended to make the common boundary 
more definite by designating the larger channel, where 
there existed two or more channels on account of 
the numerous islands to be found in the river. 
The use of the words "middle of the njain channel" 
could not have been intended to designate a different 
boundary line than that of Tennessee as it then ex- 
isted, because congress had no power to change the 
boundaries of Tennessee as fixed by it when that State 
was admitted to the union in 1796. Const. U. S., art. 
4, sec. 3; Louisiana v. Mississippi, 202 II. S., 40, 26 
Sup. CJt., 408, 50 L. Ed., 913. 

While complainant and the defendants agree that the 
western boundary line of Tennessee is as declared and 
fixed by the treaties and legislative enactments which 
we have briefly stated— that is, that the middle of the 
Mississippi river as it ran in 1763 is the line that 
separates the jurisdiction of Tennessee from that of 
Arkansas — ^yet they disagree as to what was meant by 
the expression "middle of the river^' and how it is 
now to be interpreted. Complainant insists that the 
contracting parties and legislative bodies, establishing 
this boundary by these words, "middle of the river," 
meant the middle of the main channel of the river, or 
a line along the river bed equidistant from the visible, 
defined, and substantially established banks confining 



70 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

the waters on either* side— that is, the line between it 
and Arkansas; while the defendants contend that they 
meant the center of that part of the waters or stream 
of the river which is deepest and is usually used by 
steamboats and other craft plying the river, or, in other 
words, the center of the channel of commerce. This is 
an important question, affecting the States of Tennessee 
and Arkansas in their sovereign capacity, and their ju- 
risdiction along this entire joint boundary line, and 
the decision of this case, since at the point where the 
water flowed over the lands in controversy the deep- 
water channel used by boats in ascending and descend- 
ing the river previous to 1876 ran much nearer to one 
bank than the other, the Tennessee bank, and it is en- 
titled to the most careful consideration by the court. 
The defendants insist that under the laws of nations 
and the weight of decisions of the courts of this coun- 
try, where a navigable river or the middle of such river 
is made the boundary line separating coterminous 
States or nations, the center of the channel of com- 
merce is the true and correct line between them, and 
that this rule should apply in this case. The State 
controverts this, and maintains that the weight of au- 
thority in such cases is that the separating line is mid- 
way the channel or bed of the river and equidistant 
from the visible and established banks within which the 
waters are confined and flow. The State further in- 
sists that not only the general rule is in favor of this 
contention, but that, if it were otherwise, it would not 



11 Cates] SPECIAL SEPTEMBER TERM, 1907. 71 
state T. Pulp Co. 

be applicable to this case, because the line has been 
fixed as claimed by it by treaties, legislation, and long 
nsage, acquiescence, and possession by the two sovereign 
States interested, complainant and Arkansas. Before 
proceeding to the direct question involved, we think 
it will throw some light on the authorities we will dis- 
cuss to notice what are the constituent parts of rivers 
or other streams as defined and used by the courts. In 
LiM? V. Hoggin, 69 Cal., 417, 10 Pac, 770, it is said: 

"A watercourse is defined to consist of bed, banks, 
and water. It must be made to appear that the water 
usually flows through a regular channel with banks or 
sides. The bed and banks, or the channel, is in all 
cases a natural object to be sought after, not simply by 
application of any abtract rule, but, like other natural 
objects, to be sought for and found by the distinctive 
appearance it represents. Whether, however, worn 
deep by action of the water or following the exact de- 
pression without any marked erosion of soil or rock; 
whether distinguished by difference of vegetation or 
otherwise rendered perceptible — a channel is necessary 
to the constitution of a watercourse." 

In Benjamin v. River Improvement Company, 42 
Mich., 628, 4 N. W., 483, it is said that the channel of a 
river is the passageway between the banks through 
which its waters flow; and in Larrabee v. Cloverdale, 
131 Cal., 96, 63 Pac, 143, a channel is said to include, 
not only all the channels through which under existing 
conditions of the country the water naturally flows, 



72 TENNESSEE REPORTS. [119 Tenn. 

state r. Pulp Co. 

bnt new channels through which it may afterwards 
flow. 

We think, from examination of a number of cases 
bearing more or less upon this subject, that the channel 
of the river and the bed of the river ordinarily mean 
the same thing, and are understood to describe that 
depression on the earth's surface in which the waters 
of the stream are confined and flow in its ordinary 
stages, unaffected by freshets or droughts. Houghton 
V. Railroad Co., 47 Iowa, 370; Cessill v. Staie, 40 Ark., 
504; Railroad v. Ramsey, 53 Ark., 314, 13 S. W., 931, 
8 L. R. A., 559, 22 Am. St. Rep., 195; Stover v. Jack, 
60 Pa., 339, 100 Am. Dec, 566; Howard v. Ingersojl, 
13 How. (U. S.), 381, 14 L. Ed., 189; Alabama \. 
Georgia, 23 How. (U: S.), 505, 16 L. Ed., 556; Smn- 
ham V. Turn/pike Co., 1 Lea (Tenn.), 704, 27 Am. Rep., 
789; Dmileith & Dubuqtie Bridge Co. v. Dtubuque, 55 
Iowa, 558, 8 N. W., 443. 

The precise question we are now considering was be- 
fore the supreme court of Arkansas in 1883, and that 
court construed the treaties we have referred to, and 
the act of congress admitting Arkansas into the union, 
as contended for by Tennessee, and held the line be- 
tween that State and Tennessee to be the middle of the 
main channel or bed of the Mississippi river, equidistant 
from the visible banks confining its waters, and not one 
along the so-called center of the channel of commerce. 
The opinion is an able and interesting one, and since 
it is a decision of the direct question here involved by 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 7a 
state y. Pulp Co. 

the highest court of one of the two sovereign States in- 
terested, in a case to which that State was a party, we 
quote from it at length. Gessill, the plaintiff in error, 
was indicted and convicted of illegally selling liquor 
from a boat anchored in the Mississippi river, and ap- 
pealed. Eakin, J., speaking for the court, flaid : 

"It will be observed that the principle upon which 
the court proceeded is that the line of deepest water 
in the river bed is the boundary of the State, and con- 
tinues such as it fluctuates. 

"The act of congress admitting the State into the 
union, approved June 15, 1836 (5 Stat., 50, c. 100), 
designated for the eastern boundary *the middle of the 
main channel' of the Mississippi river, between latitude 
thirty-six degrees north and the northeast corner of the 
State of Louisiana, at a point to be dete^^ined by ex- 
tending the north line of the latter State to the middle 
of the said channel. This description was embodied in 
the constitution of 1836, and repeated in that of 1864. 
It was also adopted in the constitution of 1868, with 
the explanation that the said boundary should include 
a certain island known as ^Belle Point Island.' In ad- 
dition to this, the present constitution provides gen- 
erally that the State shall embrace *all other land orig- 
inally survqred and included as a part of the territory 
of the State of Arkansas.' No question arises in this 
case upon either of the two qualifications, and the sole 
matter left for us to decide is this : What is meant by 
the ^main channel,' and what is the middle of it? 



74 TENNESSEE REPORTS. [119 Tenn. 

state y. Pulp Co. 

"The channel of a river, bay, or soand is, in boat- 
men's parlance, the course over its bed over which the 
water is deepest and the navigation safest. This may 
be irrespective of the current or distance from the shore. 
In questions of geography or boundaries, however, it is 
more generally used to designate the depression of a bed 
below the permanent banks, forming a conduit along 
which waters flow, and which may be at some times 
full and at others nearly, if not quite, dry. In this 
sense it is of common use in law. It is the more ob- 
vious signification in connection with boundaries, in- 
asmuch as it presents something of a permanent nature, 
or at least at all times visible, and, when changed, 
leaving traces of the old landmarks. In this sense we 
speak of bayous — Bartholomew and Atchafalaya— as 
old channels fit the Arkansas and Red rivers. They 
have permanent features independent of water; where- 
as, channels in the sense of the river pilot are ever 
shifting, invisible, discoverable only by patient sound- 
ings, and then imperfectly. We cannot suppose that 
such channels would be adopted as State boundaries, or 
as references to determine them. 

"The Mississippi river is full of islands, having water 
beds on each side. The object of the description of the 
boundary was to aflford the means of determining 
whether or not any given island was within the State, 
by taking the largest of these Tvater conduits as the 
true river. The middle of the main channel, then, must 
mean the point or line long the river bed equidistant 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 75 
state ▼. Pulp Co. 

from the permanent and defined banks of the ascer- 
tained channel on either side. Even this line is a fluc- 
tuating one, but in a far less and no very inconvenient 
degree. Gradual attrition on one side, with accretion 
on the other, making a change in the permanent banks, 
might perhaps change the boundary with r^ard to ab- 
solute space. But it is not necessary, for practical pur- 
poses, that a boundary should be a fixed mathematical 
line, and this could only apply to changes in the banks 
of a channel which remains substantially the same. 
For, if the main body of the water were to find a new 
channel and abandon the old one, leaving intervening 
lands in a natural state, the old boundary would be 
still ascertainable, and would g:ovem. This has been de- 
cided in the case between Kentucky and Missouri (m- 
/ra), and results, with regard to surveyed lands^ from 
the additional clause, above noted, in the constitution 
of 1874. It seems that the largest channel determines 
which is the river, and the central line of that makes 
the State boundary. 

"The boundary line in question is a very old one, 
and does not concern this State alone. It originated 
with the treaty between England, France, and Spain, 
in February, 1763, which made the middle of the Mis- 
sissippi river the boundary between British and French 
territories. This line has been ever since observed in 
subsequent treaties, in federal l^slation, in State 
constitutions, and in judicial decisions, and there are 
not lacking unmistakable indications of the meaning 



76 TENNESSEE REPORTS. [119 Tenn. 

state r. Pulp Co. 

of the middle of the river. For instance, in the treaty 
between the United States and Spain, in October, 1795, 
before our purchase of Louisiana, the fourth article 
provides ^that the western boundary of the United 
States, which separates them from the Spanish colony 
of Louisiana, is in the middle of the channel or bed 
of the river Mississippi, from the northern boundary of 
said States to the completion of the thirty-first degree 
of latitude north of the equator.' 

"In the case of Myers v. Perry et ai., 1 La. Ann., 372, 
which resulted from a steamboat collision on the Mis- 
sissippi, it became necessary to ascertain the locus in 
quo as affecting jurisdiction between the States of 
Louisiana and Mississippi. The middle of the river 
was taken as the boundary line, without any reference 
to depth of the water. See, also, on the same subject, 
a case very replete with historical learning, that of 
Morgan d Harrison v. Reading^ reported in 3 Smedes 
& M*. (Miss.), 366, in which this great empire boundary 
is described, with reference to the treaty of 1763, as ^a 
line drawn along the middle of the Mississippi.' This 
would not be a good description of a steamboat track, 
zigzagging from bank to bank amongst sand bars in 
low water. ... 

"In the case of Missouri v. Kentucky, 11 Wall. (U. 
S.), 395, 20 L. Ed., 116, which was a contest between 
States for jurisdiction over Wolf Island, in the Missis- 
sippi, Mr. Justice Davis said that by virtue of the 
treaties above named, together with the treaty of peace 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 77 
state y. Pulp Co. 

AWth England in 1783, the ancient right of Virginia, to 
which Kentucky had succeeded, extended to the middle 
of the bed of the Mississippi river. 

^'It seems that, where there are several channels, the 
principal one is considered the river, and in this the 
medium filum makes the boundary. 

"There was only one channel in this case, which was 
the river bed between the Arkansas and Tennessee shores 
at Osceola. The court and attorneys treated the case 
throughout as if channel meant the line of the deepest 
water sought by boatmen, and the instructions were 
given on one side and refused on the other with reference 
to this idea. The river bed being the same as in 1784, 
no question could arise as to change of channel. The 
instructions asked by the defense were erroneous, but 
those given for the State were equally so, being based on 
a false theory as to the meaning of channel. It should 
have been left to the jury to determine whether the posi- 
tion of the boat was nearer to the Arkansas or the 
Tennessee main bank, and to have found the defendants 
guilty or innocent accordingly.^' Cessill v. State, 40 
Ark. 501. 

We concur fully with the supreme court of Arkansas 
in the construction given the treaties of 1763 and 1783 
in that opinion, and hold, as held by that court, that the 
boundary line between the British possessions in Ameri- 
ca, which then included all the territory now composing 
the States bordering upon and having for their western 
boundary the Mississippi river, and the territory of 



78 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

Louisiana then belonging to Spain^ was fixed and defined 
as a line along the middle of the main channel of the 
river, equidistant from the visible and permanent banks 
confining its waters, and that the several acts of con- 
gress admitting into the union the States lying upon 
both sides of the river at various times, in calling for 
the middle of the river and the middle of the main chan- 
nel or stream of the river, had reference to these trea- 
ties and must be construed to mean the same thing. 
This question has not before been before this court; but 
in a case involving property rights upon an unnavigable 
stream, called for as a boundary line of private estates, 
it was held that "the thread of the stream is the mid- 
dle line between the shores, irrespective of the depth 
of the channel, taking them in the natural and ordinary 
stage of the water, at medium height, neither swollen 
by freshets nor shrunk by droughts." Branham v. Turn- 
pike Co., 1 Lea (Tenn.), 706, 27 Am. Rep., 789. The 
general understanding of the people and the constituted 
authorities of Tennessee has been and is that the line 
separating the State from Arkansas is as defined in the 
case of Cessill v. State, supra. This appears from an 
act of the general assembly of the State approved April 
15, 1903 (chapter 420, p. 1215, Acts 1903), in which the 
lands in controversy and all others lying upon the Ten- 
nessee side of the middle of the old bed of the river are 
declared to be the property of the State, and the governor 
authorized to appoint commissioners, to act with other 
commissioners to be appointed by the State of Arkan- 



11 Gates] SPECIAL SEPTEMBEE TERM, 1907. 79 
state V. Pulp Co. 

sas, to run and mark the line, and also to report to the 
governor the extent and value of such lands. The gen- 
eral assembly of Arkansas passed a similar act, but it 
M^as vetoed by the governor of that State, and therefore 
no commissioners were appointed under the act passed 
by the legislature of Tennessee. This suit was brought 
by direction of the governor of this State, and is not 
only an acquiescence in the boundary line as defined by 
the authorities of Arkansas, but an assertion of juris- 
diction up to that line and title to property within it. 
We think, whatever may be the construction of the trea- 
ties defining this great boundary line, or the acts of 
congress admitting other States bordering upon it, that 
the concurrence of Tennessee and Arkansas in the in- 
terpretation of the treaties and legislation aif ecting their 
boundary line is effective between them, and controlling 
in this and other cases involving the question. 

These same treaties, we have seen, which define the 
common boundary line of all the States bordering upon 
both sides of the Mississippi river, in connection with 
the acts of congress admitting those States into the un- 
ion, have been frequently construed by other courts, and 
in every case that has been called to our attention, with 
two exceptions, all these courts have concurred with the 
conclusions reached in the case of Cessill v. State, supra. 

The boundary line separating the States of Louisiana 
and Mississippi, Missouri and Kentucky, Missouri and 
Illinois, and Iowa and Illinois, where the Mississippi 
flows between them, is defined in the several acts of con- 



80 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

gress admitting these States into the union in words 
similar to those defining the line between Tennessee and 
Arkansas; that is, "the middle of the Mississippi river,^^ 
or "the middle of the main channel of the river." We 
have seen, from cases cited in the opinion of the court 
in Ceasill v. State, supra, of Myers v. Perry, 1 La. Ann., 
372, and of Morgan & Harris v. Reading, 3 Smedes & 
M., 366, that the supreme courts of Louisiana and Mis- 
sissippi have both construed the treaty of 1763, and the 
acts of congress in relation to it, to define and fix the 
line equidistant from the banks of the river. The su- 
preme court of Iowa has so held in a case involving the 
line between it and the State of Illinois. In relation 
to what is meant by the middle of the channel it is there 
said: 

"The course of navigation, which follows what boat- 
men call the channel, is extremely sinuous and often 
changing, and is unknown except to experienced navi- 
gatora On the other hand, the bed of the main river, 
designated by the word ^channel' used in its primary 
sense, is the great body of water fiowing down the stream. 
It is broad and well defined by islands or the main shore. 
It cannot be possible that congress and the people of 
the State in describing its boundary used the word ^chan- 
neP to describe the sinuous, obscure, and changing line 
of navigation rather than the broad and distinctly de- 
fined bed of the main river. The center of this river bed 
channel may be readily determined, while the center of 
the navigable channel often could not be known with 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 81 
state V. Pulp Co. 

eertainty. The first is a fit boundary line of a State. 
The second cannot be." Dunleith & Dubuque Bridge 
Co. V. Dubuque Couniy, 55 Iowa, 558, 8 N. W., 443. 

The case of Missouri v. Kentucky, 11 Wall. (U. S.), 
395, 20 L. Ed., 116, involved a question of the jurisdic- 
tion over Wolf Island in the Mississippi river. Con- 
srt ruing the treaty of 1763 between England, France, and 
Spain, Mr. Justice Davis, speaking for the court, said : 

"It is unnecessary for the purposes of this suit to 
consider whether on general principles the middle of 
the channel of the navigable river which divides coter- 
minous States is not the true boundary between them, 
in the absence of express agreement to the contrary, be- 
cause the treaty between France, Spain, and England 
in February, 1763, stipulated that the middle of the Mis- 
sissippi river should be the boundary between the Brit- 
ish and French territories on the continent of North 
America. And this line, established by the only sov- 
ereign powers at that time interested in the subject, has 
remained ever since as they settled it. It was recogniz- 
ed by the treaty of peace with Great Britain in 1783, 
and by diflferent treaties since then, the last of which 
resulted in the acquisition of the Territory of Louisiana 
(embracing the country west of the Mississippi) by the 
United States in 1803. The boundaries of Missouri, 
when she was admitted into the Union as a State in 1820, 
were fixed on this basis, as were those of Arkansas in 
1836. And Kentucky succeeded in 1792 to the ancient 

119 Tenn — 6 



82 TENNESSEE REPORTS. [119 Tenn. 

State V. Pulp Co. 

right and possession of Virginia, which extended by 
virtues of these treaties to the middle of the bed of the 
Mississippi river.*' 

The act of congress passed April 18,1818 (3 Stat, 429, 
c. 67), enabling the people of the Territory of Illinois 
to adopt a constitution and organize a State, defined 
the western boundary of the State as follows : "Starting 
in the middle of Lake Michigan, at north latitude forty- 
two degrees, thirty minutes, thence west to the middle 
of the Mississippi river, and thence down the Mississippi 
river to its confluence with the Ohio river." 

The case of 8t Louis v. Rutz, 138 U. S., 226, 11 Sup. 
Gt., 337, 34 L. Ed., 941, was brought to recover an island 
in the Mississippi river, and involved the location of the 
line separating the States of Missouri and Illinois. The 
island was found to be upon the eastern side of the 
center of the main channel and bed of the river, and the 
decree was for the defendant. It is there said : 

"As the law of Illinois confers upon the owner of land 
in that State which is bounded by or fronts on the Mis- 
sissippi river the title in fee to the bed of the river, to 
the middle thereof, or so far as the boundary of the 
State extends, such riparian owner is entitled to all the 
lands in the river which are formed on the bed of the 
river or of the middle of its width. That being so, it 
is impossible for the owner of an island which is situated 
on the west side of the middle of the river, in the State* 
of Missouri, to extend his ownership by mere accretion 
to land situated in the State of Illinois, the title in fee 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 83 



State y. Pulp Co. 



to which is vested by the law of Illinois in the ripari- 
an owner of the land in that State." 

In the cases ot Jones v. Soulard. 24 How. (U. S.), 41,. 
16 L. Ed., 604, and St Louis Public School v. liislei/, 
10 Wall. (U. S.), 91, 19 L. Ed., 850, it is held that, under 
the act of Congress admitting Missouri to the union and 
defining its eastern boundary as the middle of the maiu 
channel of the Mississippi river, the line was the middle 
of the river, without any reference whatever to Avhere 
the channel of commerce ran, and presumably to a line 
midway between the established banks of the river. 

In the cases of Nebraska v. Iov:a, 143 U. S., 359, 367. 
12 Sup. Ct., 396, 36 L. Ed., 186, and Missouri v. Nebras- 
M, 196 U. S., 23, 25 Sup. Ct, 155, 49 L. Ed., 372, both 
of which involved controversies of jurisdiction growing 
out of sudden and violent changes made by the Missouri 
river in its channel similar to the one made by the Mis- 
sissippi in this case, it was held that the boundary line 
between the commonwealths, which were parties to tho=:e 
cases, respectively, remained fixed in the center of the 
old river bed, thus in effect holding that previous to the 
avulsions by which the channel of the river was changed 
the State line was the middle of the channel; that is, 
a line midway between the banks of the river. In the 
case of Nebraska v. lotoa, 143 U. S., 361, 12 Sup. Ct.. 
396, 30 L. Ed., 186, the following quotation is made, with 
approral, from the opinion of Attorney-General Cushiu^ 
in a matter of dispute between the United States and 
Aiexico us to the international boundary at the place 



84 TENNESSEE REPORTS. [119 Tenn. 



state V. Pulp Co. 



where the Rio Grande had made a change in its chan- 
nel: 

"But, on the other hand, if, deserting its original bed, 
the river forces for itself a new channel in another direc- 
tion, then the nation through whose territories the river 
thus breaks its way suffers injury by loss of territory 
greater than the benefit of retaining the natural river 
boundary, and that boundary remains in the middle of 
the deserted river bed. For, in truth, just as a stone 
pillar constitutes a boundary, not because it is a stono, 
but because of the place in which it stands, so a river 
is made the limit of nations, not because it is running 
water bearing a certain geographical name, but because 
it is water flowing in a given channel and within given 
banks, which are the real international boundary." 

The only cases that have been called to our attention 
Hupporting the contention of the defendants are those 
of Buttcnuth V. St. Louis Bridge Co., 123 111., 535, 17 
N. E., 439, 5 Am. St. Rep., 545, and loioa v. Illinois, 147 
U. S., 1, 13 Sup. Ct., 239, 37 L. Ed., 55, both involving 
the line in the Mississippi river separating the States 
of Iowa and Illinois. The former was decided first, and 
is cited and approved in the latter. Mr. Justice Field, 
delivering the opinion of the court, says : 

"When a navigable river constitutes the boundary be- 
tween two independent States, the line defining the point 
at which the jurisdiction of the two separates is well es- 
tablished to be the middle of the main channel of the 
streiim. The interest of each State in the navigation of 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 85 
state v. Pulp Co. 

the river admits of no other line. The preservation by 
each of its equal right in the navigation of the stream 
is the subject of paramount interest. It is therefore 
laid down in all well- recognized treatises on internation- 
al law^ of modern times that the middle of the channel 
of the stream marks the true boundary between the ad- 
joining States up to which each State on its side will 
exercise jurisdiction. In international law, therefore, 
and by the usage of European nations, the term 'middle 
of the stream,^ as applied to a navigable river, is the 
same as the middle of the channel of such stream, and 
in that sense the terms are used in the treaty of peace 
between Great Britain, France, and Spain, concluded 
at Paris in 1763. By the language, 'a line drawn along 
the middle of the River Mississippi from its source to the 
River Iberville,' as there used, is meant along the middle 
of the channel of the River Mississippi. Thus Wheaton, 
in his Elements of International Law (8th Ed.), sec- 
tion 192, says: 'Where a navigable river forms the 
boundary of coterminous States, the middle of the chan- 
nel, or "thalweg," is generally taken as the line of sepa- 
ration betw^een the two States, the presumption of law 
being that the right of navigation is common to botli; 
but this presumption may be destroyed by actual proof 
of prior occupancy and long, undisturbed possession, 
giving to one of the riparian proprietors the exclusive 
title to the entire river.' 

"And in section 202, while thus stating the rule as to 
the boundary line of the Mississippi river being the mid- 



86 TENNESSEE REPORTS, [119 Tenn. 



State T. Pulp Co. 



die of the channel, he states that the channel is remark- 
ably winding, ^crossing and recrossing perpetually from 
one side to the other of the general bed of the river.^ 

"Mr. Creasy, in his First Platform on International 
Law, p. 222, section 231, expresses the same doctrine. 
He says: 

" ^It has been stated- that, where a navigable river 
separates neighboring States, the "thalweg," or middle 
of the navigable channel, forms the line of separation. 
Formerly a line drawn along the middle of the river, 
the ^'medium fihim aqua&' was regarded as the boundary 
line, and still will be regarded prima facie as the boun- 
dary line, except as to those parts of the river as to 
which it can be proved that the vessels which navigate 
those parts keep their course habitually along some 
channel different from the medium filum. Where this 
is the case, the middle of the channel of traffic is now 
considered to be the line of demarcation.' '^ 

And after citing several other works on International 
Law, Justice Field proceeds: 

"The reason and necessity of the rule of international 
law as to the midchannel being the true boundary line 
of a navigable river separating independent States may 
not be cogent in this country, where neighboring States 
are under the same general government, as in Europe, 
yet the same rule will be held to obtain, unless changed 
by statute or usage of so great length of time as to have 
acquired the force of law. 

"As we have stated, in international law and by the 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 87 
State T. Pulp Co. 

usage of European nations, the terms ^middle of the 
stream' and ^midchanneP of a navigable river are syn- 
onymous and interchangeably used. The enabling act 
of April 18, 1818 (3 Stat, 428, c. 67), under which Illi- 
nois adopted a constitution and became a State and was 
admitted into the union, made the middle of the Mis- 
sissippi river the western boundary of the State. The 
enabling act of March 6, 1820 (3 Stat, 545, c. 22, section 
2), under which Missouri became a State and was admit- 
ted into the union, made the middle of the main channel 
of the Mississippi river the eastern boundary, so far as 
its boundary was coterminous with the western boun- 
dary of Illinois. The enabling act of August 6, 1846 
(9 Stat., 56, c. 89), under which Wisconsin adopted a 
constitution and became a State and was admitted into 
the union, gives the western boundary of that State, 
after reaching the River St. Croix, as follows: ^Thence 
down the main channel of said river to the Mississippi, 
thence down the center of the main channel of that 
[Mississippi] river to the northwest corner of the State 
of Illinois.^ The northwest corner of the State of Illi- 
nois must therefore be in the middle of the main chan- 
nel of the river which forms a portion of its western 
boundary. It is very evident that these terms, ^middle 
of the Mississippi river,' and 'middle of the main chan- 
nel of the Mississippi river,' and 'center of the main 
channel of that river,' as thus used, are synonymous. It 
is not at all likely that the congress of the United States 
intended that those terms, as applied to the Mississippi 



SS TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

river separating Illinois from Iowa, should have a dif- 
ferent meaning when applied to the Mississippi river 
separating Illinois from Missouri, or a different meaning 
when used as descriptive of a portion of the western 
boundary of Wisconsin. They were evidently used as 
signifying the same thing.'' 

He then quotes extensively from the case of Dtinleifh 
& Dubuque Bridge Co. v. County of Dubuque, supra, 
and Buttenuth v. St. Louis Bridge Co., supra, and con- 
eludes : 

^'The opinions in both these cases are able, and pre- 
sent, in the strongest terms, the different views as to the 
line of jurisdiction between neighboring States, sepa- 
rated by a navigable stream ; but we are of the opinion 
that the controlling consideration in this matter is that 
which preserves to each State equality in the right of 
navigation in the river. We therefore hold, in accord- 
ance with this view, that the true line in navigable rivers 
between States of the union which separates the juris- 
diction of one from the other is the middle of the main 
channel of the river. Thus the jurisdiction of each 
State extends to the thread of the stream ; that is, to the 
^midchannel,' and, if there be several channels, to the 
middle of the principal one, or rather, the one usually 
followed." 

This case is in direct conflict with the previous cases 
of Misffouri V. KctitucJcy, St. Louis v. liutz, Jones v. Sou- 
lard, St. Louis Public School v. Risleij, and Nebraska v. 
Iowa, above cited, which involved practically the same 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 89 

state V. Pulp Co. 

question, and the first four construed the same treaties 
and acts of congress. They are not differentiated, over- 
ruled, or even referred to in the case of Iowa v. Illinois. 
The decision in these cases is based upon the proper con- 
struction of the treaties and acts of congress admitting 
the States into the union, and not upon the laws of 
nations. We are better satisfied >\ath the reasoning gf 
these eases than we are with that of the last one, and 
prefer to follow them. We think they correctly con- 
strue and interpret the treaties and legislation controll- 
ing and defining the boundary lines of the coterminous 
States ui)on the Mississippi river according to the inten- 
tion of the powers making the treaties and of congress 
in admitting those States into the union. 

The case of loxoa v. Illinois was decided avowedly upon 
the rules of international law, and was not a construc- 
tion of the treaties defining the boundaries under con- 
sideration, with a view of ascertaining the intention of 
the parties making them, and the controlling considera- 
tion with the court in the application of the rules of 
international law to the case was the preservation of 
equality in the right of navigation to the river to the 
co-terminous States. 

There is much conflict in the opinions of text-writers 
upon the law of nations upon this question; but the 
weight of authority is that at the time the treaties in 
question were made, in the absence of a convention estab- 
lishing it otherwise, the true boundary between nations 
bordering upon navigable waters was a line midway be- 



90 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

tween the visible and fixed banks of the stream. Mr. 
Creasy, in his work on International Law, the chief 
authority cited by the court in loioa v. Illinois, says that 
'^formerly the line drawn along the middle of the water, 
the medium filum aquae, was regarded as the boundary 
line, and still will be regarded prima facie bb the boun- 
dary line except as to those parts of the river as to 
which it can be proved that the vessels which navigate 
those parts keep their course habitually along some 
channel different from the medium filumJ^ 

It will not be amiss here to call attention to what Mr. 
Angell, in his work on Water Courses, says ujwn this 
question : 

"By the middle of the channel is meant the thread of 
the stream, the filum aquae; that is, the middle line be- 
tween the shores upon each side, without regard to the 
channel, or lowest parts or deepest parts of the water. 
In ascertaining the shores, the water line on each side 
to measure, it will be proper to find where these lines 
are when the water is in its natural and ordinary stage, 
at medium height, neither swollen by freshets nor shrunk 
by droughts." 

Another author says: 

"A river that separates two jurisdictions is not to be 
considered barely as water, but as water confined in 
such and such banks and running in such and such chan- 
nel ; hence there is water having a bank and a bed over 
which the waters fiow in its channel, meaning by the 
word *channeP the place where the river flows, includ- 



11 Cates> SPECIAL SEPTEMBER TERM, 1907. 91 
state V. Pulp Co. 

ing the whole breadth of the river." Grotius, p. 18, 
c. 2. 

We think some confusion has arisen, both in the text- 
books and in the decisions, in relation to this matter, 
by failure to properly differentiate those ca^es where 
there are several channels caused by the existence of 
islands in the stream, where it is held that the line is 
the center of the main channel, meaning the largest 
division of the river at that place, from those where there 
is only one channel to be followed. 

We do not deem it necessary, however, to enter into 
a discussion of the laws of nations upon the subject. 

Whatever may be the general rule, we do not think 
it applies or is controlling in this case. Gteneral rules 
of international law cannot be invoked when the matter 
in question has been settled by the parties in interest 
otherwise, eijther by agreement^ convention, acquies- 
cence, or long and undisturbed occupancy and posses- 
sion. T\\iss, International Law, 127; 1 Halleck, Inter- 
national Law, 50. 

We do not think the high contracting parties to the 
treaty between Great Britain, Prance, and Spain, made 
in 1763, in which the line separating the British pos- 
sessions in North America and the Territory of Louis- 
iana, defined to be the "middle of the river,'^ meant a 
channel of commerce as it varied and shifted from side 
to side of the stream, but a line midway between the 
banks. We understand from Mr. Creasy, as above 
quoted, that at that day the call for a navigable stream 



92 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

as the boundary line between two nations was constru- 
ed to be the middle of the bed of the river, a line equi- 
distant from the respective banks, and will be regarded 
prima facie so at this day. When these treaties were 
made the country along the banks of the Mississippi river 
above the city of New Orleans was practically unknown 
and uninhabited, save by the Indians. The river was 
not navigated. There were no boats upon the river, 
and its various windings had not been surveyed or map- 
ped, nor its depth sounded. There was no known fixed 
channel of commerce in the river. * Had a question of 
jurisdiction arisen under the construction of the treaty 
given in loica v. Illinois, it would liave been impossible 
to determine whether the occurrence took place within 
the territories of Great Britain or those of France or 
Spain. We think, considering the then existing con- 
ditions, every presumption is that the parties intended 
the middle of the channel between the banks which 
control the waters of the stream, the bed of the river, 
should be the line separating their respective Territories. 
The banks were visible, and a line midway between them 
could be ascertained when occasion required it. No 
channel of commerce existed, and a line in the center of 
it could not possibly be located. The first constructions 
of these ancient treaties were in accordance with the con- 
tention made by Tennessee in this case. In the treaty 
made by the United States w ith Spain in October, 1795, 
before the purchase of Louisiana, the fourth article pro- 
vided "that the western boundary of the United States, 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 93 
state y. Pulp Co. 

which separates them from the Spanish colony of Louis- 
iana, is in the middle of the channel or bed of the River 
Mississippi, from the northern boundary of said States 
to the completion of the thirty-first degree of latitude 
north of the equator.'' Cessill v. State, 40 Ark., 505. 
This was not only an interpretation of the former trea- 
ties, but it superseded them. The decisions of all the 
courts of last resort of the several States, as well as 
those of the United States, involving this boundary line, 
with the exception of those of Buttenuth v. St. Louis 
Bridge Co., supra, and lowu v. Illinois, supra, have been 
favorable to the contention that the line runs midway 
between the banks of the river, and it is only at a late 
day by those cases that a doubt was suggested or arose 
as to the true and correct line which formerly separated 
the British possessions in America from those of France 
and Spain, and subsequently a number of the largest 
and most influential States of the union. The former 
construction has become a rule of property and should 
not be disturbed. We are not impressed with the argu- 
ment that it is necessary to hold the line to be along the 
so-called channel of commerce in order to preserve to 
the several States interested in the question equality in 
the right of navigation of the river. We do not think 
such necessity exists. Where a navigable river con- 
stitutes the boundary between two States, the middle 
of the channel separating their respective jurisdictions, 
both are presumed to have free use of the whole of it 
for the purposes of commerce. The whole river is of 



94 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

right common to both nations as a public highway. The 
Apollon, 9 Wheat. (U. S.), 362, 371, 6 L. Ed., Ill; 
Handly v. Anthony, 5 Wheat. (U. S.), 374, 5 L. Ed., 113; 
Wharton, Int. Law Digest, section 30 ; Gould on Waters, 
202; Wheaton, Int. Law, sections 192, 193. The free 
navigation of the Mississippi river by citizens of the 
United States was expressly provided for and preserved 
in the treaty made by the United States with Great 
Britain in 1783, and again in that made by the United 
States with Spain, October 27, 1795. The right of the 
citizens of the several States of the union to navigate 
the waters of this river has been frequently declared by 
acts of congress. It is asserted in the constitntions 
of all the states bordering upon its waters, and is so 
well established that no possible apprehension can be 
entertained that it will be interfered with. Act Cong. 
May 18, 1796, 1 Stat., 464, c. 29 ; Act COng. June 1, 1796, 
1 Stat., 490, c. 46; Act Cong. March 3, 1803, 2 Stat., 229, 
0. 27; Act Cong. March 26, 1804, 2 Stat., 277, c. 35; Act 
Cong. Feb. 20, 1811, 2 Stat, 641, c. 21; Act Cong. March 
3, 1811, 2 Stat., 662, c. 46; Act Cong. April 8, 1812, 2 
Stat., 701, c. 50; Act Cong. June 4, 1812, 2 Stat, 743, 
c. 95; Act Cong. March 1, 1817, 3 Stat, 348, c. 23; Act 
Cong. May 8, 1817; Gould on Waters, section 68; Const. 
Tenn., 1870, art 1, section 29. 

The commerce clause of the constitution of the United 
States, all other things aside, affords ample protection 
to the right of every citizen to the free navigation of the 
river, whether the current be in one State or another. 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 95 
state V. Pulp Co. 

without fear of hindrance or burdens imposed by such 
States. There can be no doubt of this. 

The reasons for having a fixed, certain, and visible 
line, such as the middle of the channel as measured from 
the respective banks of the river, we think, greatly out- 
weigh those advanced in support of the decision of the 
case of Iowa v. Illinois. It is of the highest importance 
to the adjoining States that the location of the boundary 
line between them be certain and susceptible of easy 
proof; otherwise, they will be greatly embarrassed in the 
enforcement of their criminal laws, the assessment and 
collection of taxes, and many other things in the ordi- 
nary and common exercise of sovereignty. It is easy 
to conceive cases where so much doubt could be thrown 
upon the location of the channel of commerce that the 
jurisdiction of either State to punish crime committed 
upon the river would be entirely defeated. 

But the question has been settled by the duly consti- 
tuted authorities of Tennessee and Arkansas by judicial 
decisions, legislation, and other authorized official ac- 
tions, long acquiescence, the exercise of jurisdiction un- 
challenged, and other acts amounting to an agreement or 
convention. The highest court of Arkansas, in a case 
to which the State was a party, and at its instance, in 
the assertion of its sovereignty and jurisdiction, has de- 
fined the limit between the two States to be the line mid- 
way between the visible banks of the river, and enforced 
the criminal laws of the State up to that line. The gen- 
eral assembly of Tennessee has claimed title to the lands 



96 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

formerly covered by the \\^ters of the river up to the 
same line, and the governor of the State has directed 
and authorized that the proper oflBicers institute this 
suit to recover such lands. Both States agree upon it 
as the true and correct line separating their territories, 
and others cannot be heard to complain. Such a course 
of conduct has been held to be conclusive upon States 
in controversies concerning their boundaries. Indiana 
v. Kentuclcy, 136 U. S., 479, 10 Sup. Ct., 1051, 34 L. Ed., 
329. Tennessee is now before this court as a suitor, as- 
serting that her western boundary line lies midway be- 
tween the visible banks of the Mississippi river. Arkan- 
sas, as a suitor in the case of Ccssill v. State, supra, as- 
serted that her eastern boundary line ran at the same 
place, and exercised jurisdiction to such line. This is 
binding upon both States, and neither can now recede 
from such solemn admissions of the location of the line 
separating them. 

Tennessee acquired title to all the soil under the 
waters of the Mississippi river to the limits of her juris- 
diction. It is well-settled law that soil under the waters 
of navigable rivers, as well as the waters, are held by the 
States for the use and in trust of the public, so long a» 
the river continues navigable. 

The United States has always recognized this rule 
in its disposition of the public domain. The grants 
made by it lying upon navigable streams to private par- 
ties are limited by high-water mark, and the soil be- 
tween that and the rivers and under their waters vested 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 97 

state V. Pulp Co. 

in the States in which it lies. The States, however, may 
dispose of this property as they may allow, subject to 
the general control of congress over all navigable waters; 
this being a matter within their discretion and governed 
by the State authorities. 

In Hardin v. Jordan, 140 U. S. 371, 372, 11 Sup. Ct., 
808, 838, 35 L. Ed., 428, the title of the State to the soil 
under navigable waters within their boundaries, and 
their right to control and dispose of the same, before 
and after abandoned by the waters, is held and stated 
in these words: 

"With regard to grants of the government for lands 
bordering on tide water, it has been distinctly settled 
that they only extend to high-water mark, and that the 
title to the shore and lands under water in front of 
the lands so granted inures to the State within which 
they are situated, if a State has been organized and 
established there. Such title to the shore and lands 
under water i^-regarded as incidental to the sovereignty 
of the State — a portion of the royalties belonging 
thereto and held in trust for public purposes of naviga- 
tion and fishery— and cannot be retained or granted out 
to individuals by the United States. Pollard v. Hagan, 
3 How. (U. S.), 212, il L. Ed., 565; Goodtitle v. Kibbe, 
9 How. (U. S.), 471, 13 L. Ed., 220; Weber v. Harbor 
Commissioners, 18 Wall. (U. S.), 57, 21 L. Ed., 798. 
Such title being in the State, the lands are subject to 
State regulation and control, under the conditions, 
119 Tenn— 7 



98 TENNESSEE REPORTS. [119 Tenn. 

state y. Pulp Co. 

however, of not interfering with the regulations which 
may be made by congress with regard to public navi- 
gation and commerce. The State may even dispose of 
the usufruct of such lands, as is frequently done by 
leasing oyster beds in them, and granting fisheries in 
particular localities; also by the reclamation of sub- 
merged flats, and the erection of wharves and piers and 
other adventitious aids of commerce. Sometimes large 
areas so reclaimed are occupied by cities, and are put 
to other public or private uses. State control and own- 
ership therein being supreme, subject only to paramount 
authority of congress in making regulations of com- 
merce and in subjecting the lands to the necessities and 
uses of commerce. See Manchester v. Massachusetts, 
139 U. S., 240, 11 Sup. Ct., 559, 35 L. Ed., 159; Smith 
v. Maryland, 18 How. (U. S.), 71, 15 L. Ed., 269 
McCready v. Virginia, 94 U. S., 391, 24 L. Ed., 248 
Martin v. WaddeU, 16 Pet. (U. S.), 367, 10 L. Ed., 997 
Den V. Jersey Co., 15 How. (U. S.), 426, 14 L. Ed., 
757, 

"The right of the States to regulate and control the 
shores of tide waters, and the land under them, is the 
same as that which is exercised by the crown in Eng- 
land. In this country the same rule has been extended 
to our great navigable lakes, which are treated as in- 
land seas, and also, in some of the States, to navigable 
rivers, as the Mississippi, the Missouri, the Ohio, and, 
in Pennsylvania, to all the permanent rivers of the State ; 
but it depends on the law of each State to what waters 



11 Catesl SPECIAL SEPTEMBER TERM, 1907. 90 
state V. J^lp Co. 

and to what extent this prerogative of the State over 
the lands under water' shall be exercised.'^ 

In Tennessee it has uniformly been held that grants 
to lands lying upon navigable streams extend to ordi- 
nary low-water mark only, and that the title to the 
bed of the stream remains in the State. Martin v. 
Nance, 3 Head, 649; Posey v. James, 7 Lea, 98; Oood- 
win V. Thonvpsmi, 15 Lea, 209, 54 Am. Rep., 410; Hoi- 
hert V. Edens, 5 Lea, 204, 40 Am. Rep., 26 ; Stockley v. 
Cissna, 119 Fed., 829, 56 C. C. A., 324; Taylor v. Conir 
monwealth, 102 Va., 759, 47 S. E., 875, 102 Am. St. 
Rep., 865; Holniati v. Hodges, 112 Iowa, 714, 84 N. W., 
950, 58 L. R. A., 673, 84 Am. St. Rep., 367. 

In the case of Holbert v. Edens, supra, it is said : 

"If a watercourse be navigable in a legal sense, the 
soil covered by the water, as well as the use of the 
stream, belongs to the public.^' 

In the- case of Ooodirin v. Thompson, 15 Lea, 215, 
54 Am. Rep., 410, this court held, not only that the soil 
in navigable streams belonged to the State, but that 
it was not subject to entry or grant as other lands; 
the statute providing for disposition of public lands not 
authorizing such grants. In that case it is said : 

"We think the public use of our navigable rivers im- 
peratively requires that the soil under the water should 
be in the State in trust for the public, and that title 
to the soil under such terms was not intended to be 
secured by individuals under our general land laws, and 



TOO TENNESSEE REPORTS. [119 Tenn. 

state T. Pulp Co. 

that any person setting np claim thereto must be able 
to show an express legislative grant." 

It is also well-established law that when the waters 
recede, or land is formed upon the bed of navigable 
rivers, as in case of islands forming in navigable waters, 
the property in such dry land is in the State, to be 
disposed of by it as its authorities may determine and 
direct. Morris v. Brooke (Del.), cited in MvXry v. "Nor- 
ton J 53 Am. Rep., 215, note; Hardin v. Jordan, 140 U. 
S., 371, 372, 11 Sup. Ct, 808, 838, 35 L. Ed., 428; Pacher 
V. Bird, 137 U. S., 666-672, 11 Sup. Ct., 210, 34 L. 
Ed., 819; 2 Black. Com., 261; 11 Am. & Eng. Enc. 
Law (1st Ed.), 865. 

The case of Morris v. Brooke is an instructive one, 
and the conclusions of the court are well supported by 
authority. We quote from it : 

"New islands arising in the sea or in a navigable 
river prima fade belong, according to the common law, 
to the king in England, and in this country to the State. 
But this rule is not universal. 

"The right to the new islands, and also to lands 
gained by alluvion or dereliction (in cases where they 
are not gained by insensible degrees), all of which are 
governed by the same principles, follows the right to 
the soil which is covered with water. As the king is 
the proprietor in general of the soil covered with the 
sea or a navigable river, it is reasonable that he should 
have the soil where the water leaves it dry; and this 
stands on the ground of the prerogative. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 101 
State V. Pulp Ck>. 

"But, where the right to the soil when covered with 
water belongs to a subject, he is entitled to all these 
increments. 2 Bl. Com., 262; Hale, de Jure Maris, chs, 
4 and 6. 

"This is illustrated by the law relative to islands 
arising in private rivers. If an island arises in the 
middle of such a river, it belongs in common to those 
who have lands on each side thereof ; but, if it be nearer 
to one bank than to the other, it belongs only to him 
who is proprietor of the nearest shore. Yet this, says 
Sir William Blackstone (2 Com., 261), seems only to 
be reasonable when the soil of the river is equally 
divided between the owners of the opposite shores; for, 
if the whole soil is in the freehold of any one man, as 
it usually is, wherever a several fishery is claimed, there 
it seems just (and so is the constant practice) that the 
lyotts, or little islands arising in any part of the river, 
shall be the property of him who owneth the piscary and 
the soil. The rules relative to the sea and navigable 
rivers are formed on the same principles. 

"This subject is very satisfactorily explained by 
Lord Hale in his Treatise de Jure Maris, chs. 4 and 6, 
to the whole of which I generally refer for the proof 
of the rule I have stated, that the right to a new is- 
land follows the right to the soil on which it was 
formed. This will be found from those chapters to be 
the rule with regard to all maritime increments. I 
will state here a few passages from them: ^If a sub- 
ject hath had by prescription the property of a cer- 



102 TENNESSEE REPORTS. [119 Tenn. 

state ▼. Pulp Co. 



tain tract, or creek, or navigable river, or arm of the 
sea, even while it is covered with water, by certain 
known metes and extends, though it should be relicted, 
the subject will have the propriety" in the soil relicted.' 
Harg. Law Tracts, 15. ^If a subject hath land adjoin- 
ing the sea, and the violence of the sea swallows it up, 
but so that yet there be reasonable marks to continue 
the notice of it, or though the marks be defaced, yet 
if by situation and extent of quality and bounding upon 
the firm land the same can be known, though the sea 
leave the land again, or it be regained by art or indus- 
try, the subject doth not lose his property; and accord- 
ingly it was held by Cooke & Foster, M., 7 Jac. O. B., 
though the inundation continue for forty years. If the 
marks remain or continue, or extent can reasonably be 
certain, the case is clear.' Id., 15. 

"The case of the tovrn of Shinbridge, in 18 Hen., Ill, 
is stated in page 16 : 'The river of Severn had gained 
upon the town of Shinbridge so much that its channel 
ran over part of the Shinbridge lands, and lost part 
thereof unto the other side (Aure), and then threw it 
l)ack to Shinbridge. It shall not belong to Aure, neither 
was it at all claimed by the king, though Severn be in 
that place an arm of the sea; but it was restored to 
Shinbridge as before. The propriety of the soil was not 
lost to the owners who had it before.' 

" The soil under the water niust needs be of the 
same propriety as it is when it is covered with the 
water. If the soil of the sea while it is covered with 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 103 
State V. Pulp Ck>. 

water be the king's, it cannot become the subject's be- 
cause the water has left it. But when the land, as it 
stood covered with water, did by particular usage or 
prescription belong to a subject, then recessus maris, 
so far as the subject's particular interest went while 
it was covered with water, so far the recessus maris, 
vel hrachii ejusdem, belongs to the same subject.' Id., 
31." 

We think it may be considered as settled that the soil 
under the Mississippi river, to the western boundary of 
the State, belongs to complainant, and that whenever 
it is abandoned by the water flowing over it, and no 
longer suitable or required for the purposes of com- 
merce and navigation, when not done imperceptibly and 
in process of accretion, may be taken in possession and 
disposed of by the State as her authorities may see fit 

The change made by the river March 7, 1876, in its 
channel, did not alter the boundary line separating 
complainant and Arkansas, or affect the respective 
rights of those States, or those of the owners of lands 
abutting upon the river in the abandoned channel or 
bed. The channels of the rivers and other streams and 
bodies of water may and do become changed and their 
physical location altered by the forces of nature operat- 
ing upon their shores or banks. When the change is 
made insensibly, by gradual and imperceptible washing 
away of one shore and the formation in like manner 
upon the other shore, it is said to be ^^y erosion and 
accretion." When it is made suddenly and violently. 



104 TENNESSEE EEOPORTS. [119 Tenn. 

state V. Pulp Co. 

and is visible and the effect certain, it is called "avul- 
sion." Where the boundary lines between individuals, 
as well as States and nations, are marked by streams, 
and the location of the stream is altered by erosion and 
accretion, it continues to be the boundary line; but, 
where the alteration occurs as the result of an avul- 
sion, no change is made, but the limits of the private 
estates or national territory and jurisdiction remain as 
before. These principles are well settled at common 
law, and have been frequently applied by the courts of 
the various States and those of the United Statea All 
the authorities in relation to this doctrine were reviewed 
by Mr. Justice Brewer in the great case of Nebraska v. 
Iowa, 143 U. S., 360, 12 Sup. Ct, 396, 36 L. Ed., 186, 
a case involving a dispute between those States con- 
cerning their joint boundary line, where the Missouri 
river, which marked the limits between them, had, in 
time of a great freshet, suddenly made a change in its 
channel similar to that in this case, across the *neck of 
a bend therein, in the form of an ox bow, which was 
held to be an avulsion, and to leave the line between 
the States in the center of the old channel or bed of 
the river, where it had previously existed. This case is 
so exhaustive of the subject and ably considered that we 
make no apology for quoting from it at length. It is 
there said: 

"It is settled law that when grants of land border 
on running water, and the banks are changed by that 
gradual process known as 'accretion,' the riparian 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 105 
^ State V. Pulp Co. 

owner's boundary line still remains the stream, al- 
though, during the years, by this accretion, the actual 
area of his possession may vary. In New Orleans v. 
United States, 10 Pet. (U. S.), 662, 717, 9 L. Ed., 573, 
this court said : ' The question is well settled at com- 
mon law that the person whose land is bounded by a 
stream of water which changes its course gradually 
by alluvial formations shall still hold by the same boun- 
dary, including the accumulated soil. No other rule 
can be applied on just principlea Every proprietor 
whose land is thus bounded is subject to loss by the 
same means which may add to his territory; and, as he 
is without remedy for his loss in this way, he cannot 
be held accountable for his gain.' See, also, Jones v. 
Smlard, 24 How. (U. S.), 41, 16 L. Ed., 604; Banks v. 
Ogden, 2 Wall (U. S.), 57, 17 L. Ed., 818; Saulet v. 
Shepherd, 4 Wall. (U. S.), 502, 18 L. Ed., 442; St. 
Clair Cmmty v. Lovingston, 23 Wall. (U. S.), 46, 23 
L. Ed., 59; Jefferns v. East Omaha Land Co., 134 U. S., 
178, 10 Sup. Ct., 518, 33 L. Ed., 872. 

"It is equally well settled that where a stream, which 
is a boundary, from any cause suddenly abandons its 
old and seeks a new bed, such change of channel works 
no change of boundary, and that the boundary remains 
as it was, in the center of the old channel, although no 
water may be flowing therein. This sudden and rapid 
change of channel is termed, in the law, ^avulsion.' In 
Gould on Waters, section 159, it is said: ^But if the 
change is violent and visible, and arises from a known 



106 TENNESSEE REPOBTS. [119 Tenn. 

4 

State V. Pulp Co. 

cause, such as a freshet, or a cut through which a new 
channel is formed, the original thread of the stream 
continues to mark the limit "of the two estates.' 2 Bl. 
Com., 262; Angell on Water Courses, sec. 60; Trustees 
of Hopkins Academy v. Dickinson, 9 Cush. (Mass.), 
544; Buttennth v. St. Louis Bridge Co.y 123 111., 535, 17 
N. E., 439, 5 Am. St Rep., 545; Hagan v. Campbell, 8 
Port. (Ala.), 9, 33 Am. Dec, 267; Murry v. Sermon, 
1 Hawks (N. C), 56. 

"These propositions, which are universally recognized 
as correct where the boundaries of private property 
touch on streams, are in like manner recognized where 
the boundaries between States or nations are by pre- 
scription or treaty found in running water. Accretion, 
no matter to which side it adds ground, leaves the 
boundary still the center of the channel. Avulsion has 
no effect on the boundary, but leaves it in the center of 
the old channel. In 8 Op. Attys. Gen., 175, 177, this 
matter received exhaustive consideration. A dispute 
arose between our government and Mexico, in consid- 
eration of changes in the Rio Brava. The matter hav- 
ing been referred to Attorney-General Gushing, he re- 
plied at length. We quote largely from that opinion. 
After stating the case he proceeds : 

" 'With such conditions, whatever changes happen to 
either bank of the river by accretion on the one or deg- 
radation on the other — that is, by gradual, and, as it 
were, insensible, accession or abstraction of mere par- 
tides— the river as it runs continues to be the boundary. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 107 
State V. Palp Oo. 

One country may, in {process of time, lose a little of its 
territory, and the other gain a little; but the territorial 
relations cannot be reversed by such imperceptible mu- 
tations in the course of the river. The general aspect 
of things remains unchanged; and the convenience of 
allowing the river to retain its previous function, not- 
withstanding such insensible changes in its course, or 
in either of its banks, outweighs the inconveniences, 
even to the injured party, involved in a detriment, 
which, hapi)ening gradually, is inappreciable in the suc- 
cessive moments of its progression. 

"*But, on the other hand, if, deserting its original 
bed, the river forces for itself a new channel in another 
direction, then the nation through whose territory the 
river thus breaks its way suffers injury by the loss of 
territory greater than the benefit of retaining the nat- 
ural river boundary, and that boundary remains in the 
middle of the deserted river bed; for, in truth, just as 
a stone pillar constitutes a boundary, not because it is 
a stone, but because of the place in which it stands, 
so a river is made the limit of nations, not because it 
is running water bearing a certain geographical name, 
but because it is water flowing in a given channel and 
within given banks> which are the real international 
boundary. 

" *Such is the received rule of law of nations on this 
point, as laid down by the writers of authority. See, 
e. g., Puflfend, Jus Nat. lib. Iv, c. 7, sec. 2; Gundling, 
Jus. Nat, p. 248; Wolflf, Jus Gentium, sees. 106-109; 



108 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

Vattel, Droit des Gens, lib. 1, c. 22, sees. 268, 270; 
Stynipanni, Jus Marit, c. 5, notes 476-552; Rayneval, 
Droit de la Nature, torn. 1, p. 307; Merlin, Repertoire, 
ss. voc. alluv.' " 

Further reference is made in the opinion to many 
authorities, among them Vattel, who states the rule 
thus (book 1, c. 22, sees. 268, 269, 270) : 

"If a territory terminating on a river has no other 
boundary than that river, it is one of those territories 
that have natural or indeterminate bounds {terHtoria 
arcifinia)y and it enjoys the right of alluvion; that is 
to say, every gradual increase of soil, every addition, 
which the current of the river may make to its bank 
on that side, is an addition to that territory, stands 
in the same predicament with it, and belongs to the 
same owner. For, if I take possession of a piece of 
land, declaring that I will have for its boundary the 
river which washes its side, or if it be given to me on 
that footing, I thus acquired beforehand the right of 
alluvion; and, consequently, I alone may appropriate 
to myself whatever additions the current of the river 
may insensibly make to my land. I say insensibly/ 
because in the very uncommon case called *avulsion/ 
when the violence of the stream separates a considerable 
part from one piece of land and joins it to 
another, but in such manner that it can still 
be identified, the property of the soil so removed nat- 
urally continues vested in its former owner. The civil 
laws have thus provided against and decided this case. 



11 Cates] SPECIAL SEPTEMBER TERM, 1907. 109 
State r. Pulp Co. 

when it happens between individuals and individuals. 
They ought to unite equity with the welfare of the 
State, and the care of preventing litigations." 

This full and able presentation covers all the law 
upon the subject of accretion and avulsion, and it seems 
useless to further discuss it; but w^e will cite some 
other cases in which the same doctrine is announced 
and applied: Moss v. Oibhs, 10 Heisk., 283; Posey v. 
James, 7 Lea, 98; Stockley v. Cissna^ 119 Fed., 812, 
56 C. C. A., 324; Missouri v. Kentucky, 78 U. S., 410, 
20 L. Ed., 116; Missouri v. Nebraska, 196 U. S., 23, 25 
Sup. Ct., 155, 49 L. Ed., 372; Indiana v. Kentucky, 136 
U, S., 508, 10 Sup. Ct, 1051, 34 L. Ed., 329; Rees v. 
McDaniel, 115 Mo., 145, 21 S. W., 913; Holbrook v. 
Moore, 4 Neb., 437; Collins v. State, 3 Tex. App., 823, 
30 Am. Rep., 142; ButtentUh v. St. L. Bridge Co., 123 
111., 546, 17 N. E., 439, 5 Am. St. Rep., p45. 

We have, in the light of these authorities, no hesi- 
tancy in holding that the change made in its channel 
by the Mississippi river in 1876 at Centennial Cut-OflF 
was an avulsion, and the limits of Tennessee and Ar« 
kansas, their respective rights in the abandoned chan- 
nel, and those of individuals who owned lands lying 
and abutting upon it, all remained as they w^ere before 
the formation of the new channel. The cut-olBf or for- 
mation of the new channel worked a great and impor- 
tant change in the course of this great river, shorten- 
ing its length nearly twenty miles, driving the owners 
of nearly two thousand acres of valuable cultivated 



no TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

lands from their property, washing away the surface, 
and occupying it as a bed for its waters, and so affecting 
the old channel that it necessarily filled up in the usual 
way of beds of rivers abandoned by the stream, and 
became dry land. At the same time it separated from 
the other portions of Tennessee a large part of a civil 
district of one of its counties. The change was visible, 
and the ultimate effects certain and inevitable. It was 
accompanied with great and uncontrollable force and 
violence, and occurred in less than two days,^ a remark- 
ably short time when the importance of its effects and 
results are considered. The change was complete. It 
began Friday morning, and before the next Sunday 
morning a channd of the usual width of the river, about 
a mile wide, had been washed out, and a steamboat 
passed through it that day in the usual course of navi- 
gation of the river. What had before been the channel 
of a great river, and a highway of the nations^ became 
a lagoon and slough. It is difficult to conceive of a 
stronger or more conclusive case of avulsion, both in 
respect to the new channel thus made and the old one 
abandoned. 

We are now to determine where the line between Ten- 
nessee and Arkansas should be located at the place 
where the lands sued for lie and are bounded by it. 
We are of the opinion that the true and correct line is 
midway between the banks of the river as they existed 
in 1823, as shown by the map of Maj. J. H. Humphreys. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. Ill 
state ▼. Pulp Co. 

We are led to this conclusion by the following consid- 
erations : 

We have seen that the line between the States was 
midway between the basks of the river as they existed 
in 1763. There is no direct evidence where they then 
were, and none can now be obtained. The earliest rec- 
ord of the location of the banks of the river is as they 
were in 1823, or between that date and 1830. The ter- 
ritory now composing the State of Arkansas was then 
a territory, and the lands belonged to the United States. 
Those bounded by the Mississippi river at the point in 
question, including Dean's Island, were surveyed and* 
laid ojff into townships and sections, and these sur- 
veys and maps then made are now of record in the 
General Land Office of the United States. The lands 
upon the Tennessee side of the river, including what is 
now known as "Centennial Island" and "Island 37," 
which are directly opposite Dean's Island, were granted 
by the State of Tennessee, under the authority vested 
in it by congress, to various individuals, between 1822 
and 1830. These grants and the entries and surveys 
upon which they were made are found in the proper 
offices of Tennessee. These surveys, covering both sides 
of the river, included all the lands there lying. They 
called for and adjoined each other, and other grants 
lying back of and behind them upon the main land. 
The original corners, landmarks, and lines are known 
and can be pointed out by those residing in the neigh- 
borhood. Maj. J. H. Humphreys, a competent civil 



112 TENNESSEE REPORTS. [119 Tenn. 

engineer, surveyed the townships and sections upon 
Dean's Island, and the grants made by Tennessee upon 
Centennial Island and Island 37, and has constructed 
a map showing how all of the several tracts lie, and 
their location in respect to the banks of the river upon 
both sides, as they were originally surveyed. The width 
of the river between these banks was not shown in the 
original grants and surveys; but, when all the lines 
of the townships and grants were run and located upon 
the premises, it was an easy matter to measure the 
distance between those lines and thus ascertain it. 

The correctness of the survey of Maj. Humphreys is 
not seriously controverted in this record, and we do 
not think it could be. It was evidently made in a care- 
ful manner, and is accurate and correct. The defend- 
ant Cissna concedes in his plea that this was the situa- 
tion in 1823. The presumption is in favor of the per- 
manency of boundary lines, and the burden of proof 
is upon the party averring that the location of a line 
has been changed by the action of the forces of nature. 
Tlie defendant has undertaken to prove that a change 
took place in this case by accretion to Dean's Island, 
and erosion upon the opposite Tennessee bank. The 
exact contentions are that by erosion upon the banks 
of what are now Centennial Island and Island 37, and 
accretion to the banks of Dean's Island, since 1823, 
both before and after the cut-oflf in 1876, the middle of 
the river and the line separating the two States had 
advanced gradually westward towards the Tennessee 



n Gates] SPECIAL SEPTEMBER TERM, 1907. 113 
state V. Pulp Co. 

bank, and that at the time of the cut-off the middle of 
the river was where the eastern boundary line of the 
Huddleston and Trigg lands had been before they were 
washed away and became part of the bed of the river, 
and, that being the boundary between the two States, 
complainant can recover nothing east of it, and, having 
previously granted that portion of the channel cover- 
ing the Huddleston and Trigg lands, it cannot recover 
that, because those who hold under the original grants 
are entitled to such lands since restoration or reappear- 
ance, caused by the abandonment of the channel by 
the waters, and therefore the bill of complainant must 
be dismissed. We will dispose of these contentions in 
the order they are stated. 

The great volume of the testimony introduced in this 
case by both parties was for the purpose of proving that 
the channel of the river at that place where the lands 
sued for now lie increased in width since 1823 and 
prior to 1876, and the extent of such increase, and by 
the complainant to prove that no accretions had formed 
upon Dean's Island after 1823, and by the defendants 
that the area of the island had in this way, since that 
date, been greatly increased and extended westward. 
Witnesses were examined who had lived and owned 
lands in the vicinity of the premises in dispute for many 
years before and after 1876, others who had navigated 
boats upon the river as captains and pilots during that 
I>eriod, and whose duty it was to be familiar with the 

119 Tenn— 8 



114 TENNESSEE EEPORTS. [119 Tenn. 

state V. Pulp Co. 

river, its banks and channel, and still others who had 
never seen or known the premises until after the aban- 
doned bed had filled up and had overgrown with timber. 
The chart made of the survey of Col. Suter in 1874, and 
others made by authority of the war department be- 
tween 1878 and 1884, of the river, were introduced; and 
a number of civil engineers^ including Col. Suter, w^ho 
testified in the case, and undertook to read and inter- 
pret them. These witnesses differed considerably in 
their reading of the charts and w^hat they show the 
condition of the premises to have been when the sur- 
veys upon which the charts are predicated were made. 
We will not undertake to analyze all this evidence. It 
would serve no good puri)ose, and only unreasonably 
extend the length of this opinion. We will only state 
the ultimate facts which we find to be established. 

When the avulsion took place, by erosion from the 
Tennessee side, the width of the river south and west 
of Dean's Island had greatly increased, much more im- 
mediately south of that island than west of it, where 
the premises sued for are situated. While there is 
some conflict in the evidence, we find that at this place 
it had increased from perhaps a little less than one 
mile in 1823, to between one mile and a quarter and 
one mile and a half, and that the most, if not all, of 
this was the result of erosions from the Tennessee bank. 
This, we think, is clearly established by the testimony 
of the witnesses who had resided upon the lands in the 
neighborhood, and especially upon Centennial Island 



11 Cates] SPECIAL SEPTEMBER TERM, 1907. 115 
state V. Pulp Co. 

and Island 37, and of captains and pilots of steamboats 
navigating the river for many years previous to 1876, 
when the change in the channel took place. The lands 
lying upon the river, on Centennial Island and Island 

37, were originally granted to Simon Huddleston, 

Chalmers, and John Trigg. John Trigg had two 
grants, one for thirty-seven acres and one for 152 
acres, lying immediately north of the first tract. 
•A considerable portion of the eastern parts of the Hud- 
dleston grants, all of the Trigg thirty-seven-acre tract, 
and nearly all of the tract of 152 acres, and a part 
of the Chalmers tract, had been washed away, and the 
channel of the river at that time flowed, to that extent, 
over them. The location of these lands and their 
relative position to the river as it flowed in 1823 will 
be seen by inspection of the map of Maj. Humphreys. 
The eastern bank of the river, lying on the Tennessee 
side at this point, was rather a high bank, and when 
the cut-off took place, and the current of the river 
was changed and no longer flowed against this bank, 
erosion upon it ceased, and no change was subsequently 
made in it. It can now be seen, and its identity and 
location are conceded. The lands between this bank 
and the bank of Dean's Island as it was in 1823, which 
is also located with reasonable certainty, is all now dry 
land covered with timber, and, as before stated, is noAV 
the subject of this controversy. 

We do not think that there were any accretions to 
Dean's Island previous to 1876. This is also clearly 



116 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

established by the evidence of witnesses who were liv- 
ing in the neighborhood and navigated the river im- 
mediately preceding the cut-oflf, and were thoroughly 
familiar with the situation as it then existed. They 
testify from their own observation and knowledge of the 
facts. They all state that while the towhead had ap- 
peared south and southwest of Dean's Island, and near 
and below it a sandbar and mud flats had formed, which 
were beneath the surface except in times of very low . 
water, and that no land had formed along the banks 
of the island; that in medium stages of the river boats 
ran over this bar and these flats^ and along the west 
and south banks of Dean's Island, and through the 
channel between it and the towhead; and that this was 
done by the largest boats then navigating the river. 
It is also clearly proven that the width of the channel 
of the river had increased fully, and perhaps more than, 
the erosions upon the Tennessee bank, and therefore 
there was no room for any accretions to the 
Arkansas bank. These are facta clearly established ir. 
this record, and to our minds they demonstrate that in 
1876 there had been no appreciable change in the banks 
of Dean's Island since 1823. 

Much stress is laid upon the chart made in 1874, 
under the direction of Col. Suter, and his interpreta- 
tion of the topographical signs and tracings appearing 
upon it, tending to establish that at that time there 
was timber growing upon what is shown on the chart 
to be bars and banks in the river. Complainant also 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 117 

Ctate V. Pulp Co. 

examined civil engineers, who undertook to interpret 
these maps and state what they showed in relation to 
accretions upon Dean's Island and the width of the 
river at the time they were made. This evidence is not 
entitled to very great weight. The chart is not the I'e- 
sult of a careful survey of the river and its banks, but, 



in the main, from an inspection of it made from the 
deck of a steamboat. It was a mere steamboat recon- 
noissapce. Col. Suter describes it as follows: 

"I was assigned to what was called the 'transporta- 
tion routes of the seaboard,' and the part assigned to 
me was the Mississippi river, from Cairo to the Gulf. 
In the summer of 1874— the summer and fall of that 
year— a certain sum of money was given to me to make 
an examination, and a jmrty was put on a steamboat 
belonging to the government and instructed where to 
make a reconnaissance. The funds did not allow of an 
actual survey, and that was the best we could do. The 
idea was to get some idea of the condition of the river 
and the portions of it needing improvements. That 
party was organized in the latter part of the summer 
of 1874, I have not any data at hand that would give 
the exact date, but, near as I can recollect, they started 
in August. They went down the river from Cairo to 
Vicksburg, and then returned, and subsequently went 
over the same ground again, extending the examination 
as far as New Orleans. This particular part of the 
river which you allude to was passed over four times, 
twice downstream and twice upstream. The methods 



118 TENNESSEE REPORTS. [119 Tenn. 

state T. Pulp Co. 

followed were somewhat crude, but were the best we 
could do. The party being, as I said, in a steamboat, 
the course of the boat was taken by a compass. The 
distance was determined by the speed of the boat, which 
had been accurately gauged before the party started. 
The widths of the river were, of course, estimated; but, 
where it was possible to stop for any length of time 
to get instructions ashore, the triangulations, and get 
the widths, it was done. That was used as a check, and 
there were other points that enabled some kind of a 
check on the width. The greatest difficulty was in the 
length, which, of course, the speed of the boat, varying 
with the current and all that, rendered it somewhat 
uncertain. The best that could be done was to take 
points, say thirty or forty or fifty miles, where anything 
could be recognized as a town that was shown on the 
State maps. It enabled the distance in the longitude 
and latitude to be determined approximately, and the 
lengths were determined by this reconnoissance. If the 
distance varied, they were shortened up all along the 
lines, according to the judgment of him who made the 
actual observations. There is one thing, of course, to be 
borne in mind in a case of this kind ; that the examin- 
ation was not made with any idea of determining ac- 
tually by metes and bounds. That was not the idea 
at all. It was to get a sketch, at any rate; something 
that the river looked like, and a general idea of its 
shape, direction, and location of the channel, and show 
points like that." 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 119 

state V. Pulp Co. 

Col. Suter does not testify from his personal recollec- 
tion of the river and its banks. There was nothing 
about Dean's Island to attract his special attention to 
it, and its banks were a very small part of the recon- 
noissance made by him. He had not been there for 
nearly thirty years, and could only testify what he 
understood the topographical signs upon the chart to 
mean. The civil engineers examined for complainant 
read these signs differently, and under their interpre- 
tation the chart tended to support the insistence of com- 
plainant that no accretions had formed on Dean's Is- 
land at that time. These witnesses were never upon 
the premises until after this litigation began, and knew 
nothing of the real facts of the case. The testimony of 
all these witnesses is largely conjectural and specula- 
tive, and of that character that can only be relied upon 
in the absence of better testimony and frwn the neces- 
sity of the case. The chart which we have reproduced 
at a former page of this opinion, to our minds, so far 
as it shows anything, corroborates the statements of 
the witnesses for the complainant that, at the time of 
the survey, there were no accretions to Dean's Island. 
It shows the towhead and the sand bar or mud flats 
as part of the river, and not part of the land. This 
reconnoissance was made when the waters were at a 
very low stage, almost unprecedented in the history of 
the river, and the showing is therefore as favorable as 
it possibly could be to the theory that accretions had 
then formed. 



120 TENNESSEE EEPOBTS. [119 Tenn. 

state y. Pulp Co. 

The defendants have introduced much testimony to 
show that Cottonwood trees of an age which ante- 
dates the cut-oflf are found growing upon what was 
the old bed of the river, as evidence that there were 
accretions to the island previous to the cut-oflf. Sections 
cut from such trees have been produced in court, and 
the number of rings or circles in them, which, it is 
said, show the annual growth, pointed out as conclu- 
sive evidence of their age. We do not, under the facts 
of this case, attach much importance to this evidence. 
There is testimony in the record that the cottonwood 
in the alluvial bottoms of the Mississippi grows faster 
than any but one other known tree, and that trees of 
the size of these found on this land have been known 
to grow within the time elapsing since 1876. It also 
appears that dry land first appeared in the old channel 
along the mud flats and sand bars where the water was 
shallowest, ui)on the Arkansas side of the river, and 
that the formation there was black alluvion and very 
fertile, while at other places, near the Tennessee bank, 
appearing above the surface later, there was more sand^ 
and, of course, less fertility. It is therefore, reasonable 
to suppose that the cottonwoods first began to grow 
upon the side next to Dean's Island, and have attained 
greater size there than they have on the Tennessee side. 
This, we think, clearly accounts for the difference in 
the size of the timber at the diflferent places in the old 
channel, although there is confiict in the evidence as 
to whether this is in fact true. What are called annua) 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 121 
state Y. Pulp Co. 

rings OP circles in these trees, according to the evidence,, 
is not reliable testimony of their age. It appears that 
the trees ar^ much affected by wet and dry seasons, and 
by cold weather, and that in some years more than 
one ring is formed. The sections produced in court 
were also evidently cut very near the surface, where the 
tree is abnormally enlarged, and are not fair specimens 
of the growth upon the land. 

There is also testimony of several witnesses tending 
to show that there is an elevation along the old river 
channel, considerably west of the original Dean's Is- 
land bank, which they took to be and called the bank 
of 1876. This is mere speculation upon the part of 
these witnesses. They did not reside in the neighbor- 
hood previous to 1876, and they know nothing of the 
condition of things as they, then existed. The witnesses 
examined in the case, old men who have lived in the 
neighborhood all their lives, and are familiar with the 
country and with the effects of freshets in the Missis* 
sippi river, say that there is no such bank; that what 
the defendants' witnesses took for banks are mere ridges 
or banks thrown up by the action of the water of the 
river during freshets, when the old bed was flooded, 
and the depressions near those banks mere channels that 
were washed out on such occasions. 

While all the matters which it is insisted this char- 
acter of testimony tends to establish are circumstances 
to be considered in ascertaining the ultimate fact of 
whether there were or were not accretions to Dean's 



122 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

Island previous to the avulsion, yet they are of a con- 
jectural and speculative character, and cannot be held 
to outweigh or even equal the positive and uncontra- 
dicted testimony of witnesses who testify from personal 
knowledge and observation of the events and facts 
which they had the opportunity and which it was their 
Interest and duty to observe and know. The statements 
of these living witnesses of the condition and location 
of the river and its banks at the place in question 
are reasonable and consistent with the admitted facts 
and the history of such occurrences, and we have no 
doubt but that they are true. 

The question involved is the location of a boundary 
line. Its location in 1823 may be said to be a con- 
ceded fact. Every presumption is in favor of the per- 
manency of the location of such lines. It is of the 
highest importance that their location should be cer- 
tain and fixed. When a claim is made that a line of 
this character has been changed by the forces of nature, 
it must be supported by the clearest and most satis- 
factory evidence. This has not been done by the de- 
fendants in this case. 

We are clear, also, that there were no accretions to 
the Arkansas bank after 1876. The doctrine of ac- 
cretions has no application to the filling up of the old 
channel, abandoned by the river for a new one, as the 
result of an avulsion. The rights of the parties, in 
every respect, remain as they existed prior to the 
change. The proof conclusively shows that this change 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 123 
state r. Pulp Co. 

was sadden, violent, and complete; that it resulted in 
drawing off much of the waters of the old channel, and 
leaving those remaining still and stagnant, a mere la- 
goon; that it was no longer used by boats navigating 
the river, except occasionally by small craft when the 
waters were up; that the channel immediately began 
to All with sand and other alluvial deposits; and snags, 
bars, and banks appeared in a short time above the sur- 
face, and willows and cottonwoods began to grow upon 
them. This process of filling up went on over the en- 
tire channel, but it is probable that land first appeared 
and vegetation first began to grow next to the Arkansas 
side, upon the sand bars and mud flats there previous 
to the cut-oflF, and the waters shallowest. This steadily 
proceeded until the old bed of the river became dry 
land, covered with valuable timber. This final result 
was evident from March 7, 1876, when the cut-oflf was 
made. The new channel was upon the direct general 
course of the river, and only about one-twentieth the 
length of the old one, and the fall in it was so great 
that it was a physical impossibility for the waters of 
the river to return to their old bed. In the nature of 
things and the history of such occurrences upon the 
Mississippi river, no one could doubt but that it would 
be only a few years at the furthermost until the old 
bed should be entirely filled up and almost every ves- 
tige of its formerly being the channel of a great river 
gone. This effect of the avulsion was necessary, fixed, 
and certain, and inevitable. It is immaterial whether 



124 TENNESSEE EEPOETS. [119 Tenn. 

state V. Pulp Co. 

the land first appeared on one or the other side, be- 
cause it was known and certain* that the entire bed 
would be filled up and become dry land. The underlying 
reason for holding that boundary lines upon running 
streams may be changed by erosion and accretion, and 
that the States or individual proprietors separated by 
the stream may lose or gain territory and land, is that 
the loss and gain are so gradual and imperceptible that 
it is impossible to identify and follow the soil lost, or 
to prove where that gained came from. This is il- 
lustrated in the case of Nebraska v. lovxi, supra. In 
that case it was insisted that the doctrine of accretion 
had no application to the Missouri river, because of the 
rapid and great changes constantly going on in respect 
to its banks'. The court, in disposing of this insistence, 
while admitting the facts, said: 

"Notwithstanding this, two things must be borne in 
mind, familiar to all dwellers on the banks of the Mis- 
souri river, and disclosed by the testimony : That, while 
there may be an instantaneous and obvious dropping 
into tlie river of quite a portion of its banks, such 
portion is not carried down the stream as a solid and 
compact mass, but disintegrates and separates into 
particles of earth borne onward by the flowing water, 
and giving to the stream that color which, in the his- 
tory of the country, has made it known as the 'muddy* 
Missouri; and also that while the disappearance, by 
reason of this process, of a mass of a bank may be sud- 
den and obvious, there is no transfer of such a solid 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 125 
state V. Pulp Co. 

body of earth to the opposite shore, or anything like 
a visible and instantaneous creation of a bank on that 
shore. The accretion, whatever may be the fact in re- 
spect to the diminution, is always gradual and by im- 
I>erceptible deposit of floating particles of earth. There 
is, except in such cases of avulsion as may be noticed 
hereafter, in all matter of increase of bank, always a 
mere gradual and imperceptible process. There is no 
heaping up at an instant, and while the eye rests upon 
the stream, of acres or rods on the forming side of the 
river. No engineering skill is sufficient to say where 
the earth in the bank washed away and disintegrating 
into the river finds its rest and abiding place. The fall- 
ing bank has passed into the floating mass of earth 
and water, and the particles of earth may rest one or 
fifty miles below, and upon either shore. There is, no 
matter how rapid the process of subtraction or addition, 
no detachment of earth from the one side and deposit 
of the same upon the other." 

Thus in effect it was held that the loss must be suf- 
fered, because it was impossible for the losing party 
to follow and identify his property. It would hardly 
be contended, if the avulsion in this case had imme- 
diately resulted, by great deposits of alluvion and 
drawing off of the waters of the abandoned channel, 
in drying them up, that because land first appeared 
upon the Arkansas bank, where the waters were shal- 
lowest, it was an accretion to that bank. The principle 
is not changed because it took a period of several years 



126 ' TENNESSEE EEPORTS. [119 Tenn. 

state V. Pulp Co. 

to accomplish the same fixed, known, and inevitable 
result. The filling up of the old channel in this case 
was independent of the riparian rights and worked no 
change iti them. In the case of Willeij v. Lewis^ 28 
Wkly. Law Bui., 104, decided by the court of common 
pleas of Ohio, where a stream changed its channel and 
the old bed gradually dried \ip, the question was 
whether the doctrine of accretion applied. The court 
said: 

"In the case at bar, until the new channel was cut 
through, the water ran in the old channel as above 
located. When the new channel was cut through, the 
river ran through that, and the old channel became an 
abandoned channel. The change was sudden and rapid; 
was avulsion, as distinguished from an imperceptible 
change, or accretion. A change of channel could not, 
in the nature of things, be instantaneous. It must re- 
quire a certain time. But if it is rapid, sudden, and 
distinguishable from an imperceptible change, i think 
under this late case it must be controlled by the law 
of avulsion. I see no middle course. It must be either 
accretion or avulsion. I do not think it an answer 
to say that some water still ran in the old channel until 
it eventually dried up. That must necessarily be the 
case in every change of channel ; and, if it were an an- 
swer, then the proposition that the boundary remains 
as it was would be a myth.'' 

It is not every gradual change of the channel of 
streams caused by filling up with deposits cast by the 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 127 

^ state V. Pulp Co. 

waters that will, as an accretion, change the boundary 
lines of either States or riparian proprietors. This was 
held in the case of Missouri v. Kentucky, 11 Wall. (U. 
S.), 395, 20 L. Ed., 116. * The main channel of the Mis- 
sissippi river originally ran west of Wolf Island, and 
the island wsis part of the territory of the State of 
Kentucky. Through a period of several years the west- 
ern channel gradually filled up, and the main channel 
shifted to the east of the island. The State of Missouri 
claimed jurisdiction over the island on this account, 
and brought suit against the State of Kentucky to 
establish such jurisdiction. It was held, notwithstand- 
ing the change was slow and gradual, yet, since there 
was no doubt where the State line ran, it was not 
changed by the change in the flow of the waters, and 
the suit dismissed. 

The case of Indiana v. Kentucky, 136 U. S., 479, 10 
Sug. Ct, 1051, 34 L. Ed., 329, was a similar case and 
involved jurisdiction over Green River Island in the 
Ohio river. When the State of Kentucky was orig- 
inally admitted into the union, the main channel of the 
Ohio river, upon the northern bank of which, at low- 
water mark, the line separating Kentucky and the Ter- 
ritories north of it ran, was north of this island. 
Afterwards by slow process of accretion and filling up 
the channel changed to the south of the island, and In- 
diana claimed jurisdiction over it, and brought suit to 
enforce such jurisdiction. It was held that, it appear- 
ing that the island was originally within the limits of 



128 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

Kentucky, the jurisdiction over it was not lost by the 
change in the channel of the river. 

The case of Hughss and Others v. Heirs of Bvmey and 
Others, 107 La., 664, 32 South., 30, is also analogous 
to this. Previous to 1876 the Mississippi river, oppo- 
site the city of Vicksburg, Mississippi, reversed its 
course and ran northwards for some distance, then 
eastward, then southward, pursuing its general course, 
forming a long, narrow tongue of land, called "De Soto 
Point," and owned by some eight or more different pro- 
prietors. In that year, 1876, the river made a new 
channel for itself, cutting across the tongue of land 
near its northern extremity. This cut-oflf by erosion 
gradually swept away all the land south of it, until it 
reached the southern extremity of the tongue, where it 
made for itself a new and permanent channel, through 
which the current ran, and all the old channel, in- 
-cluding that made in the erosion, became a lake, called 
-^^Lake Centennial.'* About eight months elapsed from 
the time the first cut-oflf was made until the perma- 
nent channel was reached and formed. ' The lake then, 
where there was formerly land upon the tongue, began 
to fill up, bars appeared above low water in about 
three years, and gradually became dry land fit for cul- 
tivation and habitation. The owner of the northern 
extremity of the tongue, which was not washed away, 
<;laimed it as accretion to her land. The court held 
that this claim could not be maintained, but that the 
land, being subject to survey and identification, was 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 129 
state V. Pulp Co, 

the property of those who owned it at the time the sur- 
face was washed way; that the ownership of the soil 
carries with it all that is directly above and under it; 
that ground upon which the river rested temporarily, 
in going over that portion of De Soto Point, never 
ceased to belong to the defendants, the heirs of Bimey, 
and deposits placed upon it by the river in retiring 
from it, having been put upon land belonging to them, 
became likewise their property; and that the doctrine 
of reappearance of land after submergence controlled 
the case. 

The formation of dry land in the old channel of the 
river opposite Dean's Island, was not an accretion to 
either bank of that channel, but a filling up by deposit 
from the bottom of the old bed of the river, until it em- 
erged from the water and became habitable and sus- 
ceptible of cultivation. It was not in any way built 
upon the banks or aided by them. The new soil did 
not accrete to the banks, but built up on that of the 
owners of the old bed. It was not an accretion to any- 
thing, but an emergence of land, that, had been there- 
tofore covered by the waters, caused by an avulsion, 
and was and is the property of those who held it 
in its submerged condition. The channel of the river 
as it flowed in 1876, when the cut>ofr took place, covered 
the channel occupied by it in 1823, and part of the 

grants of Simon Huddleston, Chalmers, and 

John Trigg, formerly on the eastern shores of Centen- 

119 Tenn— » 



130 TENNESSEE REPORTS. [119 Tenn. 

State V. Pulp Co. 

nial Island and Island 37. When the waters of the river 
abandoned these lands, and they emerged and became 
dry land, the owners, in this case the State and the 
grantees, Huddleston and others, and not the then abut- 
ting riparian proprietors, were entitled to them. This 
is well-settled law. In the case of Mulry v. Norton, 100 
N. T., 426, 3 N. E., 585, 53 Am. Rep., 206, it is said : 

"It is not, however, every disappearance of land by 
erosion or submergence that destroys the title of the 
true owner or enables another to acquire it; for the 
erosion must be accompanied by transportation of the 
land beyond the owner's boundary to effect that result, 
or the submergence followed by such lapse of time as 
will preclude the identity of the property from being 
established upon its reliction. Land lost by submer- 
gence may be regained by reliction, and its disappear- 
ance by erosion may be returned by accretion, upon 
which the ownership temporarily lost will be regained. 
When portions of the main land have been gradually 
encroached upon by the ocean, so that navigable chan- 
nels have been extended therefrom, the people by virtue 
of their sovereignty over public highways, undoubtedly 
succeed to the control of such channels— to ownership of 
the land under them in cases of its permanent acqui- 
sition by the sea. It is clearly true, however, that 
when the waters disappear from the land, either by its 
gradual retirement therefrom or the elevation of the 
land by avulsion or accretion, or even the exclusion of 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 131 

state V. Pulp Co. 

the water by artificial means, its proprietorship returns 
to the original riparian owners.'^ 

To the same effect are the cases, above cited, of 
Morris v. Brooke (Del.), cited in Mulry v. Norton, 53 
Am. Rep., 215, note; Hughes et ah v. Heirs of Bimey 
et cU., 107 La., 664, 32 South., 30; Hardin v. Jordan, 
140 U. S., 382, 11 Sup. Ct, 808, 838, 35 L. Ed., 428; 
St. Louis V. Rtctz, 138 U. S., 226-246, 11 Sup. Ct., 
337, 34 L. Ed., 941; Stockley v. Cissna, 119 Fed., 831, 
56 C. 0. A., 324. 

This was the rule of the common law, and it applies, 
as is fully shown in the authorities we have cited, in 
favor of the State and of individuals, and as well to 
cases of emergence of lands which have in all known 
times been covered by the sea or navigable rivers, as 
well as those which have been submerged and reap- . 
peared again. If the soil under the waters belonged to 
an individual, the dry land appearing is his property; 
and if the submerged soil belonged to the State, when 
it is abandoned by the waters and becomes habitable 
and susceptible of cultivation, it remains her property. 
Clearly, the position of the defendants, that the State 
is not entitled to recover the portions of the channel 
covered by the grants to Huddleston, Trigg, and Chal- 
mers, is sound. These parties, or their assigns, are en- 
titled to. them. MonHs v. Brooke, supra; 2 Bl. Com., ' 
262; Hale, de Jure Maris, chs. 4 and 6. 

What, then, are the rights of the States of Tennessee 
and Arkansas in the premises in controversy, and what 



132 TENNESSEE REPORTS. [119 Tenn. 

state V. Pulp Co. 

is the true location of the line between them? We 
think, unquestionably, that the bed of the abandoned 
river should be divided between them, for we appre- 
hend that the Arkansas side belongs to that State, since 
the title of riparian owners under its laws is limited 
to high-water mark. Railroad v. Ramsey, 53 Ark., 314, 
13 S. W., 931, 8 L. R. A., 559, 22 Am. St. Rep., 195. 
The line separating their respective jurisdictions is to 
be run along the channel midway between the banks as 
they existed and were surveyed in 1823, as shown in the 
map made by Maj. J. H. Humphreys, and exhibited with 
the bill of complainant This was the line between Ten- 
nessee and the Territory of Louisiana when the former 
became a State and was admitted into the union. It was 
the line between Tennessee and that Territory after it 
was purchased by the United States, as is shown by the 
surveys and grants upon both banks of* the river made 
between 1822 and 1830; and the only occurrence tending 
to show a change in it since that date is the widening 
of the river between then and 1876 by erosion on the Ten- 
nessee bank to the extent of submerging the lands there, 
constituting a part of the grants made to Simon Hud- 

dleston, Chalmers, and John Trigg. The same 

rule that entitles those parties to their lands when aban- 
doned by the river also entitles Tennessee to its original 
one-half of the river bed. This is the natural and neces- 
sary result of the avulsion. The effect of it was to press 
back the line of the State, as it ran at low- water mark, 
to the eastern boundary line along the river bank to the 



11 Gates] SPECIAL SEPTEMBEE TERM, 1907. 133 

state V. Pulp Co. 

grants it had made, so as to restore the grantees and 
their assigns to their property, and at the same time 
to press back to the center of the old channel, as it ran 
previous to the submergence of those grants, the line 
between the two States, so as to restore to Tennessee 
what it held before the erosions upon its banks. The 
right of restoration to their lands was one of the vested 
rights of those grantees, and the right of Tennessee to 
be restored to her share of the original channel was one 
of her vested rights. These were the rights of the par- 
ties that existed at the time of the avulsion, and were 
fixed and settled by it, and which they had the right to 
have worked out and adjusted. 

It restores all parties to their original status, and 
does justice to them all. If the result of the avulsion 
had only affected the waters of the river, so far as to 
cause them to recede from the lands of the riparian 
proprietors on the Tennessee bank and occupy the chan- 
nel as it existed in 1823, it would not be denied that the 
line would now be the center of the bed as it was in 
1823. That the entire old bed was abandoned cannot' 
change the rights of the parties. The others interested 
cannot be restored to their own by the forces of nature, 
and "tennessee entirely eliminated and denied any bene- 
fit of the reliction of the waters. She cannot in this 
way be deprived of the property, when the same can 
without doubt be identified and located. 

It is said that complainant only sued for the land 
lying west of the center of the channel as it was in 1876, 



134 TENNESSEE EEPOBTS. [119 Tenn. 

state V. Pulp Co. 

and therefore cannot recover to the center of the channel 
of 1823. This is true; but this case must be remanded, 
for a hearing upon the answers of the defendants, and, 
if it is desired, the bill may then be amended, so as to 
make the proper averments to entitle her to recover un- 
der the principles here settled. 
Beversed and remanded* 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 135 
Stockley y. ClBsna. 

H. W. Stockley v. W. A. Cissna et al. 
(Jackson. Special September Term, 1907.) 

1. BBKOVAL OF OAUSBS. By filing certified copy of record in 
the federal court, when. 

Where the petition, proceedings, and evidence touching the re- 
fused application for the removal of a cause from the State 
court to the federal court were preserved of record by a bill 
of exceptions, the filing of a certified copy of the record, together 
with a good and sulficient bond, in the federal court, operates, 
under the acts of congress and the federal decisions, as a re- 
moval of the cause. {Post, pp. 141, 142.) 

Cases cited and approved: Martin v. Railroad, 151 U. S., 675. 

8. SAKB. Same. Defendant cannot complain of refusal to grant 
removal where he effected a removal in another way. 
The defendant cannot, in the supreme court, complain of the 
chancellor's refusal to grant a removal to the federal court, 
where it appears that the defendant had th^ full benefit of the 
removal in the mode stated in the first headnote, and where 
the federal court remanded the cause back to the State court. 
iPo«t, pp. 141, 142.) 

8- SAMB. Action of federal court on removal of cause is condu* 
sive on State court. 
The action of the federal court in remanding a cause removed 
from the State court is conclusive on the State supreme court 
{,PMt, pp. 142, 143.) 

4. CONmrUANOBS. Action of trial court not disturbed by 
supreme court, except for ^reat abuse of discretion. 
It is the established practice of the supreme court not to in- 
terfere with the discretionary action of the trial court on the 
subject of continuance, unless it appears there has been great 
abuse of its discretion. {Post, p. 143.) 



136 TENNESSEE REPORTS. [119 Tenn. 

Stockley v. Cissna. 

Cases cited and approved: Rhea v. State, 10 Yerg., 258; Todd 
V. Wiley, 3 Humph., 576; Womaok v. State, 6 Lea, 152; Rail- 
road V. Voss, 109 Tenn., 722; Pox v. State, 111 Tenn., 168. 

6. SAKE. Same. Oase in judfirment. 

The refusal of a second continuance asked by defendant at the 
June term, 1905, will not be disturbed by the supreme court, 
where a plea in abatement was filed in January, 1904, and the 
replication February, 1904, and the defendant obtained a con- 
tinuance at December term, 1904, and haying failed to take 
proof under the plea, when refused the second continuance. 
(Post, pp. 143, 144.) 

6. RES ADJUDIOATA. Judgment in ejectment is not a bar to 
an action for forcible entry and detainer. 
The action of ejectment is a real action inyolving the legal 
title, while the action of forcible entry and detainer is a posses, 
sory action involving the right of possession only, and not the 
legal title, so that the same issues are not involved in both 
actions, and, therefore^ a judgment in the ejectment suit is not a 
bar to a forcible entry and detainer action, though the parties 
and the land involved be the same, and though the judgment 
in ejectment is conclusive, with certain exceptions. {Post, pp. 
144-152.) 

Code cited and construed: Sees. 4970, 5000, 5001, 5103 (S.); sees. 
3953, 3983, 3984, 4085 (M. k V.) ; sees. 3229, 3252, 3253, 3354 
(T. A S. and 1858). 

Cases cited and approved: Edwards v. McConnel, Cooke, 305; 
BsUU V. Taul, 2 Yerg., 467; White v. Suttle, 1 Swan, 174; Elliott 
V. Lawless, 6 Heisk., 124; Brewster v. Galloway, 4 Lea, 567; 
Hubbard v. Godfrey, 100 Tenn., 150; Bank v. Smith, 110 Tenn., 
337; Borches v. Arbuckle, 111 Tenn., 498; Peyton v. Smith, 5 
Pet (U. S.), 485; Stockley v. Cissna, 119 Fed., 812; 56 C. C. A., 
324; Railroad y. Tibbs, 112 La., 51; Riverside Co. v. Townsend, 
120 lU., 16; Fish v. Benson, 71 Cal., 429; Swanson v. Smith, 
117 Ky., 116; Fain v. Miles (Ky.), 60 S. W., 939. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 137 

-Stockley v. Gissna. 

7. STATE BOUin>ABISS. Iiine between Tennessee and Arkan- 
sas was not changed by new channel, called <*Gentennial Cut- 
Oif." made in 1876. 

The boundary line between the States of Tennessee and Arkan- 
sas was not changed by the new channel, called "Centennial Cut- 
Off/' which the Mississippi river suddenly and violently cut for 
itself in 1876, leaving between the old channel and the new chan- 
nel a large body of land, called "Centennial Island," which 
boundary remained where it was originally fixed, which is de- 
termined to be the middle of the old channel of the said river 
as it ran in 1823, as shown on the Humphreys' map, appearing 
on page 155. {Post, pp, 152-163.) 

Cases cited and approved: State v. Muncie Pulp Co., 119 Tenn., 
47; Nebraska v. Iowa, 143 U. S., 359; Missouri v. Nebraska, 196 
U. S., 33; Stockley v. Cissna, 119 Fed., 812, 56 C. C. A., 324. 

8. STREAMS. Actual possession of conti^ous shore land does 
not create constructive possession of land formed by avulsion^ 
so as to authorise action of forcible entry and detainer therefor. 

A riparian owner is not entitled to land forming against his 
land by an avulsion, and hence constructive possession does 
not attach to such newly formed land by reason of his actual 
possession of the contiguous shore land, so as to enable him to 
maintain an action of forcible entry and detainer for the newly 
formed land. (Post, pp. 163-166.) 

Case cited and approved: Stockley v. Cissna, 119 Fed., 812, 
56 C. C. A., 324. 

9. AVUIiSION. Avulsion is none the less so because the old 
channel does not dry up until ten years elapse. 

Where a river suddenly makes for itself a new channel, there 
is no less an avulsion because the old channel does not imme- 
diately dry up, and ten years or more elapse before all the 
water therein disappear. {Post, pp. 165, 166.) 



138 TENNESSEE BEPOETS- [119 Tenn. 

stockier v. Cissna. 

10. BBS ADJUBIOATA. Adjudication in ejectment that grant is 
▼oid is condusiTe in subsequent forcible entry and detainer 
action, when. 

An adjudication in an action of ejectment that a State grant 
to complainant was void is conclusive between the same parties 
in a subsequent action of forcible entry and detainer. {Post, 
pp. 166-170.) 

Case cited: Stockley y. Cissna, 119 Fed., 813, 66 C. C. A., 824, 
and citations. 

11. FOBOIBLB BNTBY AND DBTAIBBB. Cutting timber and 
gnudng stock on part of track will not support this action lor 
other part, when. 

The fact that complainant, from time to time, cut timber and 
grazed stock on a certain part of a tract of land held under an 
instrument describing the whole tract does not show such 
actual possession thereof as will extend the constructive i>os- 
session to the other part, so as to be sufficient to support an 
action of forcible entry and detainer for that other part, and 
especially where the user was not shown to be continuous and 
uninterrupted. (PoH, pp. 170, 171.) 

Cases cited and distinguished: Davidson v. Phillips, 9 Yerg., 
93; Brown v. Johnson, 1 Humph., 262; Rutherford v. Frank, 
lin, 1 Swan, 322; Hopkins v. Calloway, 3 Sneed, 11; Phillips v. 
Simpson, 2 Head, 430; Mansfield v. Northcut, 112 Tenn., 536. 

12. SAMB. Possession of part is in law possession of the whole 
tract so as to support an action of. 

The possession of part of a tract of land under an instrument, 
though merely in the nature of a quitclaim deed, describing the 
boundaries of the tract, is in law the possession of the whole 
tract, sufficient to support an action of forcible entry and de- 
tainer. (Post, PP, 169, 170, 173, 174.) 

Cases cited and approved: Brown v. Johnson, 1 Humph., 262; 
Rutherford v. Franklin, 1 Swan, 322; Mansfield v. Northcut, 
112 Tenn., 636. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 139 

Stockley v. Clssna. 

18. STREAMS. ATulsion does not eztin^sh title, for reappear- 
ance ol land restores title and right to possession. 
The fact that land is swept away by avulsion does not extin- 
guish the owner's title, for, when the land reappears above the 
water, there is a restoration of title and right to possession. 
(Post, pp. 171-177.) 

Cases cited and approved: Stockley y. Gissna, 119 Fed., 813, 
56 C. C. A., 324; Mulry v. Norton, 100 N. Y., 426, and citations. 



PROM TIPTON. 



Appeal from the Chancery Court of Tipton Connty.— 
John S. CoopeE; Chancellor. 

G. J. MgSpadden^ for complainant 

Cabuthebs Ewing, for defendant Cissna. 

B. G. Beown, for defendant, Muncie Pulp Co, 



Mr. Justice McAlister delivered the opinion of the 
€ourt. 

This is an action of forcible entry and detainer. The 
object of the bill is to recover the possession of two 
tracts of land situated in Tipton county, Tennessee. 
These tracts adjoin, but are described in the bill sepa- 
rately, for the reason that complainant's title and right 
of possession to each is derived from a different source. 



140 TENNESSEE REPORTS. [119 Tenn. 

Stockley v. Cissna. 

The smaller of the two tracts comprises about one htm- 
dred and thirty-one acres, and is embraced in a tract 
of two thousand acres originally granted in the year 
1824 by the State of Tennessee to Simon Huddleston. 
The larger tract, comprising about 1,050 acres, adjoins 
the smaller tract on the north, and was originally grant- 
ed by the State of Tennessee to John Trigg. The bill 
alleged that while complainant was in the quiet and 
peaceable possession of the two tracts of land, fully de- 
scribed in the bill by metes and bounds, the defendants 
had ousted him from possession, and had cut and re- 
moved from the land timber to the value of 120,000, as 
he is informed and believes. Complainant prayed to be 
restored to the possession of the land and for a decree 
against the defendants for the value of the timber ap- 
propriated. On the hearing the chancellor pronounced 
a decree in favor of complainant, adjudging him en- 
titled to the possession of the land in controversy, and 
ordering a reference to ascertain the amount of timber 
cut and removed from the land, and to ascertain the 
value thereof. The chancellor permitted the defendants 
to appeal from said decree, and the cause is now be- 
fore this court, mainly on the assignments of error on 
behalf of the defendant W. A. Cissna. 

We shall first notice the error assigned on the refusal 
of the chancellor to order a removal of the cause on the 
petition of the defendant to the circuit court of the 
United States for the western division of the western 
district of Tennessee. The bill was filed June 10, 1903, 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 141 
Stockley r. Clssna. 

and publication ordered for the nonresident defendants 
to make their appearance in the cause on or before the 
first Monday in August, 1903, and make defense to the 
bill. The r^ular terms of court convened on the first 
Mondays in June and December. It thus appears that 
the first term of the court after the bill was filed was 
held on the first Monday in December; but^ as already 
seen, the publication for the nonresident defendants re- 
quired them to entar appearance on a rule day in Au- 
gust, 1903. It appears that on October 17, 1903, the 
defendants filed their petition for a removal of the 
cause, and a proper bond was tendered with the petition. 
On November 17, 1903, complainant filed a motion to 
dismiss the petition for removal to the United States 
court on the ground that it was filed after the time de- 
fendants had the right to file it under the act of con- 
gress. It thus appears that the ground upon which 
the petition for removal was denied was that it was filed 
unseasonably. Thereupon, on the 19th day of December, 
1903, defendants applied for leave to file an amended pe- 
tition for removal, which was disallowed by the court. 
The petition, proceedings, and evidence touching the 
application for the removal were preserved of record 
by a bill of exceptions. Defendant Oissna assigns the 
following exceptions to the action of the court in re- 
fusing his petition for removal: 

"(1) Said petition was filed in time. 

**(2) The petition as amended, and which the court 
declined to allow to be filed, was filed after an amend- 



142 TENNESSEE REPORTS. [119 Tenn. 

Stockley v. Gissna. 

ment of the bill was made which made the suit an action 
in ejectment, and therefore the defendants were entitled 
to a removal. 

"(3) No motion was made to dismiss, because the pe- 
tition was not filed in time.*' 

We find, however, that an examination of these ques- 
tions is unnecessary, since the record shows that as a 
matter of fact the cause was removed to the United 
States circuit court, and by that court remanded to the 
State court. It appears from the record that, after the 
refusal of the chancellor to order a removal, counsel pro- 
cured from the clerk and master a certified copy of the 
record, and filed it, together with a good and suflScieut 
bond, in the United States circuit court at Memphis- 
This action operated, under the act of congress and the 
federal decisions, as a removal of the cause. It further 
appears that counsel for complainant appeared in the 
federal court and moved to remand the cause to the 
chancery court of Tipton county. After argument of 
counsel and consideration by the court, the cause was^ 
ordered to be remanded to the chancery court of Tipton 
county, which was accordingly done on the 7th day of 
April, 1905. We think it very plain that the defendants 
had the full benefit of their petition for removal by the 
course adopted in filing a certified copy of the record 
in the United States court. Martin v. Baltimore & 
Ohio B. R., 151 U. S., 675, 14 Sup. Ct., 533, 38 L. Ed., 
311. 

The action of the United States circuit court on the 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 14a 

Stockley v. Cissna. 

removal of the cause is, of course, final and conclusive 
on this court. 

It is also assigned as error that the chancellor refused 
to grant defendants' application for a continuance at 
the June term, 1905. It appears that the plea in abate- 
ment filed on behalf of defendant Cissna averred that the 
lands in controversy were situatied in the State of Ar- 
kansas, and not in the State of Tennessee. Complainant 
joined issue on the plea in abatement It appears that 
at the June term, 1904, the cause was continued by con- 
sent until the next December term of the court. The 
cause was again continued at the December term, 1904^ 
to the June term, 1905, when it was called for hearing 
on the plea in abatement. Counsel for defendant there- 
upon made application for a continuance, supported by 
affidavit. It is the established practice of this court not 
to interfere with the discretionary action of the trial 
court on the subject of continuance, unless it appears 
there has been great abuse of its discretion. Womack 
V. State, 6 Lea, 152 ; Todd v. Wiley, 3 Humph., 576 ; Rhea 
V. State, 10 Yerg., 258; Fox v. State, 111 Tenn., 158, 76 
S. W., 815; Railroad v. Voss, 109 Tenn., 722, 72 S. W., 
983. 

It appears that the plea in abatement was filed Jan- 
uary 16, 1904, and the replication on February 22, 1904. 
The burden of proof to sustain this plea, of course, de- 
volved upon the defendant, and under the rules of chan- 
cery practice four months were allowed defendants in 
which to take their proof, and the complainant was 



144 TENNESSEE REPOETS. [119 Tenn. 

Stockley v. Glssna. 

entitled to two months thereafter in which to take his 
proof. At the December term, 1904, defendants had 
not taken their proof, and when the cause was called 
a continuance was asked, which was supported by af- 
fidavit. Continuance was allowed by the chancellor. 
At the June term, 1905, defendants had still failed to 
take their proof in support of the plea in abatement, 
and again requested a continuance. The court over- 
ruled the application, and, in view of the facts already 
stated, we are unable to perceive wherein the chan- 
cellor was guilty of an abuse of the discretion allow- 
ed him in such matters. The chancellor then, at the 
June term, 1905, proceeded to hear this plea in abate- 
ment, and overruled the same, adjudging that the lands 
in controversy were not in the State of Arkansas^ but 
were situated in the State of Tennessee. At the same 
term, to wit: on June 20, 1905, the defendants filed 
their answer, in which they denied all the material 
allegations of the bill. Defendants embodied in their 
answer a plea of res adjudicata, averring the present ac- 
tion to be barred by the suit of H. W. Stockley v. W. A. 
Cissna, tried and determined in the United States cir- 
<:uit court. 

We shall first consider the defendants* assignment 
of error on the action of the chancellor in overruling 
the plea of res adjudicata. That plea averred that the 
present suit was barred by a decree pronounced by the 
United States circuit court for the western division 
of the State of Tennessee, and alOarmed on writ of error 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 145 
Stockley v. Cisana. 

by the circuit court of appeals (119 Fed., 812, 56 C. 
C. A., 324), which was a litigation between the same 
parties and about the same subject-matter, wherein the 
decree was in favor of the defendant Cissna, and com- 
plainant's bill was dismissed. The suit instituted by 
complainant, Stockley, in the circuit court of the Unit- 
ed States, wad in ejectment, and for the purpose of es- 
tablishing title to and recovering the possession of the 
same lands now in controversy. We find in the record 
a stipulation of counsel in which it is agreed that H. 
W. Stockley, the complainant herein, was the complain- 
ant in the federal court suit, and that W. A. Cissna, one 
of the defendants herein, was the W. A. Cissna who was 
the defendant in the federal court case, and it is further 
agreed that the lands mentioned and descrited in the 
declaration in said suit are the same lands that are 
mentioned and described in the original bill filed in this 
cause. The distinctive feature between the two suits 
lies in the fact that the original suit in the United States 
court was in ejectment, while the present suit is an ac- 
tion of forcible entry and detainer. It is stated on the 
brief of counsel for appellant that on tlie 17th day of 
November, 1903, an amendment was made in the chan- 
cery court of Tipton county, which made this case a suit 
in ejectment, as well as one for forcible entry and un- 
lawful detainer. In this statement counsel is in error. 
It is true a written motion for leave to amend the bill 
was filed on November 17, 1903; but the court did not 

119 Tenn— 10 



146 TENNESSEE REPORTS. [119 Tenn. 

Stockley y. Cissna. 

meet until Monday, December 7, 1903, twenty days 
thereafter. When the court convened this motion was 
not presented, and no order or decree was pronounced 
upon it. No leave was ever given complainant to amend 
his bill, and as a matter of fact it was not amended, so 
as to convert it into an action of ejectment The motion 
originally filed November 17, 1903, was waived by the 
complainant, and the action still remained one for a 
forcible entry and detainer, as commenced by that bill. 
It is said the records show that the complainant in the 
case at bar relies entirely upon the same muniments of 
title as relied upon by him in the federal court, and 
that complainant has not acquired any title subsequent 
to the determination of that case. It is then argue<l 
that, not only by statute, but by general law, the de- 
cision of the fedeml court is res adjudicata and a good 
defense to the present action. The section of the Code 
invoked is Shannon's Code, section 5000, relating to a 
judgment in ejectment, as follows: 

"Any such judgment is conclusive upon the party 
against whom it is recovered, not under disability at the^ 
time of the recovery, and all persons claiming under 
him by title accruing after the commencement of the 
action.'' 

It may be conceded that a. judgment in ejectmei^ un- 
der the section of the Code quoted, as well as under well- 
recognized rules of law, is binding upon all parties to 
the action and their privies in all cases where the title 
is the subject of litigation; but the question remains 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 147 

Stockley y. Cissna. 

whether a judgment in ejectment against the complain- 
ant forever settles t^e question of the complainant's 
right of possession to said land. It is argued that this 
must be so because in ejectment both the title and the 
right to immediate possession are material issues. 
Shannon's Code, section 4970, provides as follows : 

"Any person having a valid subsisting legal interest 
in real property and right to the immediate possession 
thereof may recover the same by an action of eject- 
ment." 

It is said the same possession and the same expulsion 
alleged and relied on in the action of ejectment are re- 
lied on in the present action of forcible entry and detain- 
er ; that in the first action plaintiff sought to recover the 
land, and in order to do so it was necessary that he 
should show a legal title and right of possession; where- 
as, in the present action, he must have the right to 
immediate possession, but need not establish a legal 
title. It is said the right to immediate possession was 
a material fact determined by the judgment in the first 
case, and cannot again be litigated. The question of 
right to an immediate possession, it is true, was present 
in the ejectment suit^ and it is insisted was concluded by 
the judgment therein. In 24 Am. & Eng. Ency. of Law 
(2d Ed.), p. 780, it was said: 

"From these illustrations it will appear that it is not 
the identity of the thing sued for or of the cause of 
action which determines the conclusiveness of a former 
judgment upon .a subsequent action, but merely the 



148 TENNESSEE REPORTS. [119 Tenn. 

Stockley y. Clssnsu 

identity of the issue involved in the two suits. If an is- 
sue presented in a subsequent suit between the same 
parties or their privies is shown to have been determined 
in a former one, the cause is res ad judicata, although the 
actions are based on different grounds, or tried on dif- 
ferent theories, or are instituted for different purposes 
and seek different relief. The test of identity is found 
in the inquiry whether the same evidence will support 
both actions.'^ 

Applying these tests: (1) Was the issue involved. in 
the two suits identical? (2) Did the same evidence 
support both actions? 

In the original suit a very elaborate and learned opin- 
ion was delivered by Circuit Judge Lurton in the circuit 
court of appeals, and is reported in 119 Fed., 812, 56 
C. C. A-, 324. It appears from the opinion that the 
suit was in ejectment to establish title to the tracts of 
land in controversy, and attention was called to the dis- 
tinctive attributes of the two actions— that in ejectment, 
and that in forcible entry and detainer. The complain- 
ant failed in that action because of defective links in 
his chain of title, and because he did not show a perfect 
legal title. It was insisted, nevertheless, that com- 
plainant had such possession of the land in dispute as 
to entitle him to recover in that action. In respect to 
this eontention. Judge Lurton said : 

"The plaintiff has not chosen to resort to the Tennes- 
see statutory action of unlawful entry. That is an ac- 
tion which tries only the immediate right of possession. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 149 

Stockley y. Cissna. 

and lies whenever there has been an actual trespass re- 
sulting in a tortious dispossession. On the contrary, he 
has brought a straight action of ejectment^ which in 
Tennessee is something more than a mere possessory 
action, inasmuch as the judgment, contrary to common 
law, is conclusive on the parties, saving to persons under 
disability another action three years after the removal 
of the disability. Shannon's Code, sections 5000, 5001, 
Whatever may be the right of the plaintiflf in other ju- 
risdictions to recover in ejectment upon proof of mere 
possession at the time of defendant's entry, in Tennes- 
see the rule is well settled that the plaintiflf cannot re- 
cover in ejectment unless he shows a perfect legal title, 
either by deraignment from the State or by evidence 
of actual occupation under deeds purporting to convey 
the title for the full term of seven years"— citing Hub- 
hard V. Godfrey, 100 Tenn., 150, 47 S. W., 81, and many 
other cases. 

It thus appears from the opinion of Judge Lurton that 
the original action was not one of forcible entry and 
detainer, but an action of ejectment purely, to try tho 
question of title. It was expressly held that complain- 
ant was not entitled to recover in that action upon 
proof merely of the right to possession. It was held by 
this court in Borchts v. ArhucklCy 111 Tenn., 498, 78 S. 
W., 266: 

"That, where the judgment is silent upon a point, the 
opinion of the court may be looked to, in connection with 
the decree or judgment, for the purpose of determining 



150 TENNESSEE REPORTS. [119 Tenn, 

Stockley ▼. CIbsiul 

what was really decided by the court and intended to be 
adjudged/^ 

When we look to the opinion of Judge Lurton, we find 
the United States circuit court of appeals expressly de- 
clined to determine the question of possession in that 
action. In this connection we think the language of the 
supreme court of Louisiana in Vicksburg, S. & R. R. Co. 
V. TibhSy 112 Ija., 51, 36 South., 223, very apposite: 

"Whatever force there may be in the general proposi- 
tion that a judgment as to the ownership of a portion of 
the tract of land is conclusive between the same parties 
claiming under the same title as to the ownership of 
the whole tract, the fact remains that a final judgment 
in a particular case is the law of that case; and when 
such judgment in terms declares that one title is at is- 
sue, and another is not, it cannot constitute res adjudi- 
cata as to the title held to be not at issue.*' 

It thus appears that the judgment of the court in 
which the original suit was tried is conclusive as to what 
issues, rights, or titles were therein involved and adjudi- 
cated. The rule is firmly settled in Tennessee that 
ejectment is a real action, and, in order to entitle the 
plaintiff to recover, he must prove a valid and legal title 
to the land in controversy. Hubbard v. Godfrey, 100 
Tenn., 150, 47 S. W., 81. 

It is equally well settled that the action of forcible 
entry and detainer is a possessory action, wherein the 
right of possession only is involved, and the legal title 
cannot be determined. Shannon's Code, section 5103; 



11 Cates] SPECIAL SEPTEMBER TERM, lOpT. 151 

Stockley y. Cissna. 

ElUott V. Landless, 6 Heisk., 124; White v. Buttle, 1 
Swan, 174. 

Hence it is impossible that the same issues are in- 
volved in both actions, and there is no room for the ap- 
plication of a judgment by estoppel, whether the original 
judgment be found upon'the one or the other of the two 
actions. 

The adjudication, to be conclusive, should be upon the 
very point brought directly in issue by the pleading. 
Edwards v. McConncl, Cooke, 305; 'Brcivster v. Oallo- 
tnay, 4t Lea, 567; Bank v. Smith, 110 Tenn., 337, 75 S. W., 
1065; Estill V. Taul 2 Yerg., 467, 24 Am. Dec, 498. 

The original suit of Stockley v. Cissna obviously in- 
volved the title to the property, while the present suit 
only involves the right of possession. It thus appears 
that the issues presented in the two actions are entire- 
ly dissimilar. Under the Code, in order to maintain 
ejectment, it was necessary, not only to show a legal 
title, but a right to the immediate possession of the 
land. Failing to show a l^al title, the right of action 
must inevitably fail, although a right of possession 
might have been established. In the action of forcible 
entry and detainer, if the right of possession is estab- 
lished, plaintiff is entitled to a recovery, and he is not 
required to show a legal title. In Riverside Co. v. 
Toumshend, 120 111., 16, 9 N. E., 65, the court said: 

"But a judgment in an action of forcible entry and 
detainer cannot be treated as a bar to an action of eject- 
ment, for the reason that the questions involved in the 



152 TENNESSEE REPORTS. [119 Tenn. 

Stockley t. ClsBiia. 

two proceedings are different The object of the ac- 
tion in ejectment is to try the title to property, while 
in an action of forcible entry and detainer the immedi- 
ate right of possession is all that is involved and title 
cannot be inquired into for any purpose." Peyton v. 
mUh, 5 Peters (U. S.), 485, 8 L. Ed., 200; Fish v. Ben- 
son, 71 Cal., 429, 12 Pac, 454; Stmnson v. Smith, 77 S. 
W., 700, 117 Ky., 116 (1903) ; Fain v. Miles (Ky.), 60 
S.W.,939 (1901). 

Without further elaboration of this subject, we are 
of opinion that the action of the chancellor in overrul- 
ing the plea of res adjudicata interposedon behalf of de- 
fendant was correct. 

Our next inquiry shall he whether the land in contro- 
versy is situated within the limits of the State of Ten- 
nessee. This question is raised by the plea in abatement, 
interposed on behalf of defendant Cissna, averring that 
said lands are situated in the State of Arkansas, and 
therefore the courts of Tennessee are without jurisdic- 
tion to entertain the present action. It may be remark- 
ed in the first place that the two tracts of land in con- 
troversy, one containing 1,050 acres and the other 131 
acres, more or less, constitute a body of new-made land 
which was formed as the result of an avulsion of the 
Mississippi river in suddenly forsaking its main chan- 
nel and cutting a shorter channel across the neck of a 
bend of the river, known as the "Devil's Elbow," some 
thirty or forty miles above the city of Memphis. It 
appears that the distance by the old channel of the river 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 153 

Stockley v. Cissna. 

around the bend was from fifteen to twenty miles, while 
the distance across the neck by the new channel was less 
than two miles. This new channel was formed in the 
space of twenty-four hours in the month of March, 1876, 
and in commemoration of that event, which occurred in 
the one hundredth year of American Independence the 
channel has since been denominated the "Centennial 
Cut-Oflf.'^ An island was formed from t;he eastern shore 
of the old channel, which is now known as "Centennial 
Island.'* The topography of the country, as well as tlie 
course of the Mississippi river prior to the Centennial 
Cut-Oflf, is accurately illustrated by the map of Maj. 
J. H. Humphreys, filed in this cause and marked "Ex- 
hibit A** to the deposition of J. H. Humphreys. 

The old banks of the river, as well as the chutes, called 
"McKenzie Chute*' and "Dean's Chute," are represented 
on this map by black lines, while the channel now occu- 
pied by the river is shown by the blue lines. The lands 
in controversy are embraced between the red lines. It 
appears from this map that about the year 1823 the Mis- 
sissippi river flowed due south and on the east of Dean's 
Island, which was situated in Arkansas; that it then 
turned westwardly around Dean's island, and then 
northerly, running .between Dean's Island on the east 
and the Huddleston tract on the Tennessee main shore 
and Island 37 in Tennessee on the west; thence west- 
wardly, around Island 37; thence south westwardly, west 
of Island 37 and the Tennessee main shore ; thence south- 
wardly; thence eastwardly to within a mile and a half 



154 TENNESSEE REPORTS. [119 Tenn. 

Stockley v. Cissna. 

or two miles of the river east of Huddleston ; thence turn- 
ing southwardly, etc. The record discloses that the 
course of the river and the immediate vicinity of country 
remained substantially in this situation until March T, 
1876, when almost within a single night the river aban- 
doned its original channel and excavated a new channel 
across the east part of the Huddleston tracts extending 
from northeast to southwest. It appears that about 
one thousand acres of the Huddleston tract and parts 
of other tracts belonging to adjacent proprietors were 
swept away as the result of the avulsion of the river. 
It is conceded that the new channel of the river lies 
wholly within the State of Tennessee. Centennial Isr 
land and Island 37 lie on the north side of the new chan- 
nel, which runs between these islands and the main Ten- 
nessee shore. The record reveals that steamboats of 
light draught periodically ran through the old channel 
for two or three seasons after the cut-off, but this use 
of the old channel was finally abandoned, principally on 
account of the snags and drifts that had accumulated. 
It is shown from the proof that after a few years land 
began to appear above the water, and finally the two 
tracts of land which are now in controversy were fully 
disclosed, whether as the result of accretion, or emer- 
gence of land that had been temporarily submerged, it 
is not necessary now to inquire. In Stockley v. Ciasnay 
119 Fed., 812, 56 C. C. A., 324, the present complainant^ 
W. H. Stockley, in an action of ejectment against the 
present defendant Cissna, asserted title to these lands 



11 Gates] SPECIAL SEPTEMBER TEBM, 1907. 156 



Stockley ▼. Ciasna. 



K«flip]w«7's Map, 




156 TENNESSEE REPORTS. [119 Tenn. 

Stockley y. CissiUL 

upon two contentions: First, as accretions to land 
owned by him and originally bounded by the Mississippi 
river; second, under a grant from the State of Tennes- 
see for about one thousand acres thereof issued in 1901. 
Complainant failed to establish title to either tract of 
land, and as the result of that litigation his bill was 
dismissed. Complainant brings the present action in 
forcible entry and detainer to recover possession of the 
same lands. The first contention of complainant is 
that the lands in controversy are accretions to land 
owned by him on Island 37 and Centennial Island. 
Complainant makes an additional claim to the right of 
possession of the 131-acre tract upon the ground that the 
legal title to said land was originally vested in him, 
and that he lost possession thereof temporarily as the 
result of the avulsion of the Mississippi river. His 
claim now is that, said submerged lands having been re- 
stored by the reliction of the waters from the bed of the 
abandoned channel, his original ownership and right 
of possession have thereby been restored to him. It is 
not claimed by complainant, Stockley, that the lands 
in controversy were fenced or in cultivation by him at 
the time of the ouster by the defendant Cissna, but his 
insistence is that he is entitled to the possession of this 
land for two reasons : First, each of the two tracts now 
in litigation, one of 131 acres and the other of 1,050 
acres, is part and parcel of another tract which Stockley 
had under fence and in cultivation, holding under muni- 
ments of title describing the whole property; second, 



11 Oat€B] SPECIAL SEPTEMBER TERM, 1907. 157 
Stockier T. CIa8ii&. 

the two tracts of land described in the bill are accre- 
tions to other tracts, situated on Island 37 and Centen- 
nial Island, which- have been in possession of Stockley 
for many years. On the other hand, the contention of 
the defendant Cissna is that the land in controversy is, 
excepting possibly a small fraction, an accretion to 
Dean's Island. It is conceded that defendant Cissna 
is the owner of Dean's Island, on the Arkansas shore im- 
mediately opposite Centennial Island. In a word, his 
insistence is that the land in controversy belongs to him 
as an accretion to Dean's Island, which has been extend- 
ed since the Centennial Cut-Off entirely across the 
river until It joins the Tennessee bank. The insistence 
on behalf of Cissna is that the lands in suit are wholly 
situated in the State of Arkansas. It is admitted that 
he does not claim any land situated in the State of Ten- 
nessee. This is a sufficient statement of the case to 
decide the question propounded in the plea of abatement, 
interposed on behalf of defendant Cissna, to the effect 
that the courts of Tennessee are without jurisdiction for 
the reason the subject-matter of the .controversy lies 
wholly within the State of Arkansas. The first ques- 
tion suggested is whether the boundary between the two 
States was affected by the sudden and violent change in 
the channel of the river. The rule of law on this sub- 
ject seems well established. In Missouri v. Nebraska, 
196 U. S., 33, 25 Sup. Ct., 157 (49 L. Ed., 372), it ap- 
pears, from the statement of the case by Mr. Justice 
Harlan, that: 



158 TENNESSEE REPORTS. [119 Tenn- 

Stockley v. CiBsna. 

"Prior to July 5, 1867, the body and channel of the 
Missouri riyer were substantially as they had been con- 
tinuously from the date of the admission of the respect- 
ive States into the union, only such variations occur- 
ring during that entire period as naturally follow in 
the course of time from one side of the river to the 
other. But on the day named, July 5, 1867 (which was 
after the admission of Nebraska into the union), within 
twenty-four hours, and during a time of very high 
water, the river, which had for years passed around 
what is called *McKissick*s Island,' cut a new channel 
across and through the narrow neck of land at the west 
end of island precinct (of which McKissick's Is- 
land forms a part), about a half mile wide, making for 
itself a new channel, and passing through what was 
admittedly at that time territory of Nebraska. After 
that change the river ceased to run around McKissick's 
Island. In the course of a few years after the new 
channel was thus made the old channel dried up and 
became tillable land, valuable for agricultural purposes^ 
whereby the old -bed of the river was vacated about fif- 
teen miles in length. This change in the bed or channel 
of -the river became fixed and permanent; for at the 
commencement of this suit it was the same as it was 
immediately after the change that occurred on the 5th 
of July, 1867. The result was that the land between the 
channel of the river as it was prior to July 5, 1867, 
and the channel as it was after that date, and is now, 
was thrown on the east side of the Missouri river, 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 159 

Stockley r. Cissna. 

whereas, prior to that date, it had been on the west 
side/' 

The fundamental question in the case was whether 
the sudden and permanent change in the course and 
channel of the river, occurring on the 5th day of July, 
1867, worked a change in the boundary line between 
the two States. The syllabus of the case is as follows: 

"(1) That accretion is the gradual accumulation bj^ 
alluvial formation; and, where a boundary river 
changes its course gradually, the parties on either side 
hold by the same boundary line — the center of the 
channel. Avulsion is the sudden and rapid change in 
the course or channel of the boundary river. It does 
not work any change in the boundary, which remains 
as it was— in the center of the old channel, although 
no water may flow thereon. These principles apply 
alike, whether rivers be boundaries between private 
property or between States and nations. 

"(2) The boundary line between Missouri and Ne- 
braska in the vicinity of island precinct is the center 
line of the original channel of the Missouri river as it 
was before the avulsion of 1867, and in the center line 
of the channel since that time, although no water is 
now flowing through the original channel." 

In THebraska v. loica, 143 U. S., 359, 12 Sup. Ct., 
396, 36 L. Ed., 186, it was held : 

"When grants of land border on running water, and 
the banks are changed by the gradual process known as 
accretion, riparian owner's boundary line still remains 



160 TENNESSEE REPORTS. [119 Tenn. 

Stockley v. Cissnsu 

the stream; but when the boundary stream suddenly 
abandons its old bed, and seeks a new course by the 
process known as ^avulsion/ the boundary remains as 
it was, in the center of the old channel. And this rule 
applies to a State, when a river forms all its boundary 
lines." 

In that case Mr. Justice Brewer, after reviewing the 
cases, said: 

"The result of these authorities puts it beyond doubt 
that accretion on an ordinary river would leave the 
boundary between two States the varying center of the 
channel, and that avulsion would establish a fixed boun- 
dary, to wit, the center of the abandoned channel." 

The opinion concluded as follows : 

"It appears, however, from the testimony, that in 
3.877 the river above Omaha, which had pursued a 
course in the nature of an ox-bow, suddenly cut through 
the neck of the bow and made for itself a new channel. 
This does not come within the law of accretion, but 
that of avulsion. By this selection of the new channel 
the boundary was not changed, and it remained as it 
was prior to the avulsion the center line of the old 
channel; and that, unless the waters of the river re- 
turned to their former bed, became a fixed and un- 
varying boundary, no matter what might be the changes 
of the river in its new channel." 

In Stockley v. Cissna, 119 Fed., 812, 56 C. C. A., 324, 
Judge Lurton said: 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 161 
stockier V. olssxiCL 

"The evidence in this case made it clear that, what- 
ever may be said in respect to the formation of new 
land within the banks of the old channel, the new 
i^hannel called ^Centennial Cut-Oflf' was an avulsion. 
This was the clear admission of both parties upon this 
question of fact before the court and jury be- 
low, and in consequence of which evidence was stopped, 
having no other purpose than to show the suddenness 
and violence of the change in the course of the river. 
As much as two thousand acres was carried away in 
the course of about sixty hours, upon which stood farm- 
houses, stables, cotton gins, warehouses, etc.; and so 
rapid was the washing away of farms through which 
the river ran as to make it in some cases impossible 
to remove household effects rapidly enough to avoid the 
caving benks.'^ 

Again in the course of his opinion Judge Lurton 
said: 

"As another direct result, the old channel of the river 
so long the boundary between the two States of Ten- 
nessee and Arkansas was completely deserted by the 
river and in a short time became dry land. Thousands 
of acres of dry river bottom within the jurisdiction of 
Tennessee as lands lying on the west side of the main 
channel of the river were by this sudden formation of 
this new channel placed upon the east side of the Mis- 
sissippi river, and the inhabitants of nearly an entire 
civil district of Tipton county, one of the counties of 

'll9 Tenn— 11 



162 TENNESSEE BEPOBTS. [119 Tenn. 

Stockley ▼. Clssna. 

Tennessee lying on the Mississippi river^ found them- 
selves living on the east instead of the west side of the 
great river. But this sudden change in the channel of 
the river would not affect the titles to the lands thus 
transferred from one side of the river to the other, nor 
would it alter the boundary between the States. The 
middle of the main channel- which the river abandoned 
was the boundary before the formation of the cut-off 
channel, and that line in the dry and abandoned bed 
of the river remains the line, unaffected by the new 
course of the river/' 

Judge Lurton further said : 

'^It is clear . . • that the lands in dispute are 
on the western side of the middle line of the channel 
of the old river, and therefore within the boundary of 
Tennessee, although now east of the present channel of 
the Mississippi river.'' 

The facts stated by Judge Lurton as constituting the 
sudden and violent change in the channel of the Mis- 
sissippi,, and bringing it within the rule applicable 
to an avulsion, also appear in the present record; and 
the rule of law applied to the facts thus found is in 
conformity with the established doctrine of the supreme 
court of the United States on this subject. The boun- 
dary line, therefore, between the States of Arkansas and 
Tennessee at the locus in quo of this controversy, is 
the middle of the old abandoned bed of the Mississippi 
river as it existed at the time of the Centennial Cut- 
Off. But the exact location of this line has been the 



11 Gates] SPECIAL SEPTEMBEB TEBM, 1907. 163 
Stockley t. CissniL 

subject of much controversy at the bap upon the con- 
flicting and unsatisfactory evidence presented in the 
record. This question, however, was the main issue pre- 
sented in the case of State of Tennessee v. Mimcie Pulp 
Company and Others (decided at the present term), 
ante, p. 47, 104 S- W., 437, wherein it was held by the 
court that the true boundary line between the States 
is the center of the channel of the Mississippi river 
as it flowed in the year 1823 and as the boundary line 
was then established. It is conceded that boundary line 
embraces all the land now in suit, and brings it within 
the jurisdiction of the State of Tennessee. The line 
of 1823 is shown on the map of J. H. Humphreys^, sur- 
veyor, filed in this cause. 

The next and determinative inquiry presented on the 
record is whether, at the date of the alleged ouster 
by the defendant Oissna, complainant, Stockley, was 
in peaceable possession of the lands in controversy. We 
will first consider in this connection complainant's right 
of possession to the 1,050-acpe tract. Complainant 
claims this tract of land, first, as an accretion to the 
tract of land on Island 37 conveyed in 1869 by Robert 
I. Chester to Mrs. Martha P. Smith, and to complain- 
ant by sundry mesne conveyances, the last being from 
W. J. Caesar; second, under a grant from the State of 
Tennessee issued to complainant on the 26th of Novem- 
ber, 1901. There is no proof that complainant wa» in 
the actual possession of this 1,050-acre-tract at the date 
of the alleged ouster, or that he had said land fenced 



i64 TENNESSEE REPORTS. ' [119 Tenn. 

Stockiey v. Cissna. 

or in cultivation. The claim of complainant is that 
this tract constitutes an accretion to other lands which 
the complainant owned and of which he was in actual 
possession at the date of the ouster, and that this accre- 
tion is embraced within the boundaries of his muni- 
ments of titla In Stockiey v. Cissna, supra, wherein 
complainant sought to recover this tract of land in 
ejectment. Judge Lurton said : 

"Before the plaintiff can recover the new-formed land 
on the margin of the solid land composing Island 37, 
he must be able to establish his ownership of the bank 
against which the accretion has formed. Until he does 
this he has no shadow of claim as riparian proprietor. 
The right to accretion depends upon the contiguity of 
the claimant's estate to the river." 

The court held that, whether accretions or not, the 
plaintiff in error could not recover in an action of 
ejectment without showing either that he was a ri- 
parian proprietor against whose lands the locus in qno 
had formed, or that he held a legal title derived from 
some other sourca It was held that the plaintiff had 
not shown title to such accretions by reason of ripa- 
rian ownership, nor any title derived from any other 
source. The complainant, however, insists that, al- 
though his title to the main shore land failed in that 
action, he is nevertheless entitled to recover the pos- 
session of the accretions, because he was in possession 
of the main shore lands contiguous thereto. But a con- 
clusive answer to this position is that the.l,050-acre tract 



11 Gates] SPECIAL 8BPTEMBEB TERM, 1907. 165 
Stockley v. Cissna. 

in controversy was formed in the bed of the river as the 
result of an avulsion, and not as accreted land. We 
have already held that the loctis in quo of the present 
controversy and the rights of the litigants must be de- 
termined by the law applicable to a tedinical avulsion, 
and not to the rule governing .accretions. The claim of 
complainant is that, in view of the slow recession of 
the waters, he is entitled to the benefit of accretions 
that formed during that period. We think a complete 
answer to this position is found on the brief of Mr. 
Garuthers Ewing, in which he says : 

"We believe that, as an avulsion does not change 
property lines or property rights, the eflEect of an avul- 
sion does not, and it must be true that the recession of 
the waters from the old channel was the immediate and 
direct result of the cut-oflf or avulsion. We do not 
think there can be an avulsion which directly results 
in the abandoned channel of the river becoming grad* 
ually dry land, and that accretions could be made to 
the riparian owner's soil on the said abandoned chan- 
nel. If an avulsion leaves property and boundary lines 
undisturbed, then the property and boundary lines re- 
main exactly at the point at which they were when 
the avulsion took place. In Tennessee the riparian 
owner at the time of the avulsion had no title beyond 
low-water mark, and if the avulsion left that as the 
line we do not see how as a result of the avulsion the 
line can be projected further into the abandoned chan- 



166 TENNESSEE BEPOBTS. [119 Teniu 

Stoekley r. Cissna. 

nel, however slow the waters may have receded there- 
from/' 

.We think this an admirable statement of a sonnd 
reason why accretions cannot be claimed by a riparian 
proprietor as the result of an avulsion. It is conceded 
that the 1,050-acre tract of land was formed as the re- 
sult of the Centennial Cut-Off. This land must be, there- 
fore, either accretion or the result of an avulsion. There 
'is no intermediate course^ The fact that the old aban- 
doned channel of the river did not immediately dry, but 
that a period of ten years or more elapsed before all the 
water was withdrawn and disappeared, would not ren- 
der the cut-off any less an avulsion. This fact must 
be present whenever there is a change in the channel 
of a navigable river. It is impossible that there should 
be an instantaneous withdrawal of all the water in the 
channel; but after the avulsion has occurred there are 
accumulations of water which gradually and impercep- 
tibly disappear.^ The result of this holding is that, 
since complainant was not in actual possession of the 
l',050-acre tract at the time of the ouster, constructive 
possession did not attach to said land by reason of com- 
plainant's actual possession of contiguous shore land. 

The next contention of complainant is that he is en- 
titled to recover the possession of the 1,050-acre tract 
by virtue of the grant issued to him by the State of 
Tennessee on the 26th of November, 1901, based on an 

^This question is more fully discussed in State of Tennessee 
V. Munde Pulp Co. (decided at present term), ante, p. 47, 104 S. W., 
437. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 167 
Stockley t. Ciama. 

■ ■ I " I ' 

entry made in April of the same year. This grant was 
one of the muniments of title under which complainant 
claimed this land in the ejectment suit of Stockley v. 
Cisma, 119 Fed., 813, 56 O. 0. A., 324. It is conceded 
that this grant covers by metes and bounds the 1,060- 
acre tract, but does not include the 131-acre tract on 
Centennial Island, although it bounds the latter parcel 
of land. The claim of plaintiff in that litigation was 
that, if he did not have the title to this land as a ri- 
parian owner, the title was in the State of Tennessee, 
which had been granted r^nlarly and lawfully to him. 
It was held by the United States circuit court of appeals 
that: 

"Under the well-settled law of Tennessee, the soil. 
below low-water mark of the navigable rivers of that 
State, as well as the use of the stream for purposes 
of navigation, belongs to the public, and the title is 
vested in the State for the use of the public^'— citing 
Good/unn v. Thompson, 15 Lea, 209, 54 Am. Bep., 410; 
Elder v. Burrw, 6 Humph., 358; Martin v. Nance, 3 
Head, 649; Stuart v. Cla/rWs Lessee, 2 Swan, 10, 58 Am. 
Dec., 49; Posey v. James, 7 Lea, 98. 

"Under this rule of property, applicable to this case, 
the title of John Trigg extended only to low-water 
mark, and the title to the submerged land under the 
water and below low-water mark remained in the State 
for the use of the public. The land previously granted 
to Trigg, having been regained by accretion or other- 
wise, having again become dry land, was land regained, 



168 TENlfESSEiS KEPORTS. [119 Tenn. 

Stockley v. Cissna. 

and was not subject to grant, as the State had parted 
with its title. Curie v. Barrel, 2 Sneed, 66. 

"Plaintiff's grant is therefore void as to the land pre- 
viously granted to John Trigg on the bank of Island 
37, and can by no reasonable suggestion convey any 
land except th^t which lies between low-water mark of 
1824 and the middle of the old channel of the river. 
This strip between the two lines mentioned was, prior 
to the flood of 1876, submerged land, and constituted 
the bed of the main channel of the Mississippi river. 
... If, then, the effect was that the bed of the old 
stream was suddenly deserted, so as to constitute a case 
of reliction, rather than the formation of land by the 
slow processes of accretion, the riparian owners would 
not profit; for the title to the land so suddenly become 
dry by the stream deserting its old bed would continue 
in the State in such jurisdictions as hold that the titles 
to the submerged bed of navigable streams is in the 
State in trust for the public. The court held that, 
under the Tennessee law providing for the granting and 
entering of vacant lands belonging to the State, this 
deserted river bed was not open for entry and grant, 
and that the grant of November 26, 1901, to the plain- 
tiff by the State, was invalid. . . . The lands in- 
cluded in this grant were, at the time of the enactment 
of the law under which the grant was issued, plainly 
and clearly not within the terms of the law. They were 
not unoccupied, vacant lands within the meaning of the 
Tennessee act, as determined by the highest court of 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 169 

Stockley ▼. Cissna. 

that State. They have since become dry land, capable 
of occupation, by a most extraordinary natural phe- 
nomenon — the sudden abandonment by a great river of 
its natural channel for a new and shorter one. The 
situation is one which could not have been reasonably 
contemplated by the lawmaker when providing for the 
ordinary vacant lands belonging to the public domain. 
The lands in question were not at the date of the act of 
1847 within the meaning and purview of the makers 
of the law, because it was the policy and purpose of 
the State to reserve for the public use the beds of such 
navigable rivers. • • . The dry river bed is public 
property held by the State for public purposes, and 
some further legislation by the State is necessary before 
such property will become open to private ownership. 
There was no such state of evidence as would justify 
the court instructing the jury that the premises included 
in the grant below low- water mark of 1824 was an 
addition by accretion to the lands granted prior there- 
to and bounded by the river, or that the change which 
had occurred had been so sudden as not to be regarded 
as an accretion; but in either case the grant was in- 
effectual to give title to the plaintiff. There was, there- 
fore, no error in the instruction to And against the 
plaintiff.'^ 

This holding is, of course, conclusive between the par- 
ties to the present litigation, who were the real liti- 
gants in Stockley v. Cissna; but it is insisted on behalf 
of complainant that, notwithstanding the entry and 



170 TENNESSEE EEPOBTS. [119 Tenn. 

THwiLlny ▼. Oissna. 

grant of 1901 may be void, those munimente of title 
may be looked to as defining the boundarieB of the 
1,050-acre tracts and that, since complainant at the 
time of the ouster was in possession of a portion of the 
ly050-acre tract, that possession will be extended to the 
limits *of the boundaries defined in the entry and grant 
of 1901. The proposition is that possessLon of part of 
a tract of land under an instrument describing the 
whole is sufficient to maintain an action of forcible 
entry and detainer for that not actually in possession. 

Counsel cites: Rutherford v. Franklin, 1 Swan, 822; 
Brown v. Johnson, 1 Humph., 262; Mansfield y. North- 
cut, 112 Tenn., 586, 80 S. W., 437. 

In the case last cited it was held that constructive 
possession of a tract of land under a deed definitely 
describing its boundaries, connected with actual pos- 
session of part of the premises, is sufficient to authorize 
and maintain an action of unlawful entry and detainer. 
The court cited and approved Davidson v. PJUllips, 9 
Yerg., 93, 30 Am. Dec, 393; Hopkins v. Calloway, 3 
Sneed, 11; Phillips v. Simpson, 2 Head, 430. 

In Mansfield v. Northctit, supra, it appeared that 
plaintiffs in an action of unlawful entry and detainer 
had a deed to the land sought to be recovered definitely 
describing the boundaries, and claimed to the extent of 
the boundaries. There was a house on the land, occu- 
pied by defendant as tenant of plaintiffs, and the re- 
mainder was uninclosed mountain land. A claimant 
of the land under hostile title built a cabin upon a 



11 Gates] SPECIAL SEPTEMBEB TEBM, 1907. 171 
Stoekley r. oLmbiul 

different part of the premises and induced the tenant 
to move into it and attorn to him« It was held that 
the landlord could not thus, by collusion between his 
tenant and an adverse claimant, be deprived of his pos- 
session, which was of the entire tract, sufficient to 
maintain his action of forcible entry and detainer. 
These principles are sound and well-recognized; but we 
do not find in this record any proof of the actual pos- 
session by complainant of any part of the 1,050-acre 
tract at the time of the ouster by the defendant Cissna. 
It is conceded by complainant, Stoekley, that he had 
no house or improvements on any part of this tract, 
nor was he in possession of the same by a tenant. No 
part of said land was under fence or in a state of cul- 
tivation. The entire claim of Stoekley to an actual 
possession is based upon the fact that from time to time 
he cut timber from this land and used it for the grazing 
of his stock. It is not even shown that this user was 
•continuous and uninterrupted, and no such actual i)osses- 
sion of any part of this land is shown as is contemplated 
by the law. The claim, therefore, of complainant to 
the possession of the 1,050-acre tract, must be denied, 
for all of the reasons stated. 

We next proceed to a consideration of the claim of 
•complainant to the right of possession of the 131-acre 
tract. This tract was also claimed as an accretion to 
-shore lands claimed to be owned by complainant; but 
-since we hold that the law of avulsion, and not the 
law of accretion, applies to the formation of the land 



172 TENNESSEE REPOETS. [119 Tenn. 

Stockley v. Cissna. 

in controversy, complainant's claim to this tract on 
this ground must also be denied. As held by the United 
States circuit court of appeals in Stockley v. Cissna, 
supra: 

"This 131-acre parcel is not an accretion to the 305- 
acre tract acquired by Stockley by deed from Allen, 
inasmuch as it is a restoration of a part of the 1,500 
acres conveyed by Huddleston to John Trigg, which was 
washed away as a first effect of the Centennial Out« 
Off." 

It appears from the record that this parcel of land, 
while owned by John Trigg, the second grantee in the 
deraignment of title, was suddenly swept away by the 
formation of the new channel in 1876, and that since 
that time this submerged land has again appeared above 
the water. It is shown that in the ejectment suit in 
the United States court plaintiff deraigned title to this 
tract of 131' acres down to John Trigg, who was in 
possession of the premises at the date of the avulsion 
in 1876. The federal court held that complainant had 
failed to show a divestiture of title to this land out of 
John Trigg, or otherwise how he had acquired the John 
Trigg title. But it does appear that John Trigg died 
about the year 1865, and devised this land to his son, 
W. W. Trigg, who remained in possession until his 
death, about the year 1871 or 1872. He left surviving 
him his wife, one son, and one daughter. It appears 
the widow and heirs were in possession until after the 
cut-off. It is shown that by the cutoff about one 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 173 
Stockley r. Clssna. 

thousand acres of the land, including the 131-acre tract, 
was washed away. After the cut-off the remaining parts 
of these tracts which were not washed away were sold 
by decree of the chancery court for the payment of the 
debts of John Trigg. The firm of Sledge, McKay & Com- 
pany bought these lands at the chancery sale and went 
into possession. This firm and their assigns and heirs 
remained in possession until they sold to T. H. 
Allen, who in the year 1888 conveyed the lands to com- 
plainant, Stockley, who has since that time been in 
I>ossession; but, as found by the United States circuit 
court, the parcel of 131 acres which is claimed as an 
accretion is not included within the si>ecific boundaries 
described, but is conveyed by Allen, if at all, by opera- 
tion of iihe added words, "and accretions thereto." 
Hence, in the present investigation, the Allen deed may 
be entirely discarded, since complainant can assert no 
constructive possession of the 131-acre tract by virtue 
of that deed. It further appears that in March, 1897, 
the widow and heirs of W. W. Trigg conveyed their 
interest in the tract, including the part that had been 
washed away, to the complainant, Stockley. This deed 
includes in its description the 131-acre tract in contro- 
versy. It is shown in the present record that the par- 
ties who joined in that conveyance were wife and heirs 
at law of W. W. Trigg, deceased. It is not shown that 
complainant had, at the date of the allied ouster or at 
any time, had possession of any part of the 131-acre 
tract, other than that constructive possession which re- 



174 TENNESSEE BEPOBTS. [119 Team. 

Stockley t. Cissna. 

suits from his possession of other parts of the land 
included in the deed just mentioned. The deed from the 
widow and heirs of W. W. Trigg is merely in the nature 
of a quitclaim deed. Oomplainant again invokes the 
rule that possession of part of a tract under an instru- 
ment describing the boundaries of the tract is in law 
the possession of the whole tract. Rutherford v. Frank- 
Un, 1 Swan, 322; Brovm v. Johnson, 1 Humph., 262; 
Mansfield v. Northcut, 112 Tenn., 536, 80 S. W., 437. 

It was held by the federal court that complainant's 
deraignment of title from John Trigg faUed, and the 
infirmity in the deraignment was based upon the fact 
that there was no evidence of either the death of W. W. 
Trigg or that the grantors were in fact his widow and 
heira As already stated, this defect of evidence has 
been supplied in the present record. We are of opinion, 
therefore, that complainant in the present cause has 
shown a possessory right to the 131-acre tract, since in 
1897 he went into possession of more than four hun- 
dred acres of the Trigg tract under the deed from W. W. 
Trigg and others, which in its description included the 
131-acre tract He was, therefore, in constructive pos- 
session of the latter tract in 1901, when the defendant; 
Cissna went upon the land and built a fence across it, 
thus ousting complainant of his possession. It has been 
suggested, however, that the 131-acre tract was washed 
away and disappeared at the time of the Centennial 
Cut-Off. It is true that one thousand acres of the 
Trigg land, which includ^ed the 131 acres, was swept 



11 C5ateB] SPECIAL SEPTEMBER TERM, 1907. 175 
Stockley t. Ciasna, 

away by the ayalsion of 1876 ; but this fact does not 
extinguish the owner's title to said land, for, when it 
reappealred above the water, there was a restoration of 
the title and right of possession. On this subject, in 
the case of Stockley v. Cissna, supra. Judge Lurton 
said: 

"As a consequence of the changed course of the river 
in 1876, the submerged Trigg lands have been restored, 
through accretion or some other process, and are now 
dry land. It cannot be contended that, because the sur- 
face of this land was washed off, Trigg lost his title to 
said land so submerged, beyond recovery. The law is 
otherwise. Land lost by erosion or submergence is re- 
gained to the original owner, when by reliction or ac- 
cretion the water disappears and the land emerges." 

In Midry v. Norton, 100 N. T., 426, 3.N. E., 581, 55 
Am. Rep., 206, it appeared that a beach had been washed 
away and was afterwards restored. In the midst of its 
opinion the court said: 

"It is not, however, every disappearance of land by 
erosion or submergence that destroys the title of the 
true owner or enables another to acquire it; for the 
erosion must be accompanied by a transportation of the 
land beyond the owner's boundaries to effect that re- 
sult, or the submergence followed by such a lapse of 
time as will preclude the identity of the property to be 
established upon its reliction. Land lost by submer- 
gence may be regained by reliction, and its disappear- 
ance by erosion may be returned by accretion, upon 



176 TENNESSEE REPORTS. [119 Tenn. 

Stockley v. Cissna. 

Avhich the ownership temporarily lost will be regained. 
When portions of the main land have been greatly en- 
croached npon by the ocean, so that navigable channels 
have been extended therefrom, the people by their sov- 
ereignty over public highways undoubtedly succeed to 
the control of such channels and the ownership of the 
land under them in case of its permanent acquisition by 
the sea. It is equally true, however, that when the 
water disappears from the land, either by its gradual 
retirement therefrom or the elevation of the land by 
<ivulsion or accretion, op even the exclusion of the 
water by artificial means, its proprietorship returns to 
the original riparian owner." Angell, Tide Waters, 
76, 77; Houck's Rivers, 258. 

"Neither does the lapse of time, during which the 
submergence continues, bar the right of such owner to 
enter upon the land and reclaim and assert his pro- 
prietorship." Angell, Tide Waters, 77-80, and cases 
cited; Ocean City Ass^n v. Shriver^ 64 N. J* Law, 550, 
46 Atl., 690, 51 L. R. A., 425; 8t. Louis v. Rutz, 138 
U. S., 249, 11 Sup. Ct, 337, 34 L. Ed., 941; Gale v. 
Kinzie, 80 111., 132; Minton v. Steel, 125 Mo., 181, 28 
S. W,, 746; Hughes v. Bimey, 107 La., 664, 32 South., 
30. 

It was held in the federal court case of Stockley v. 
Cissna that the heirs of John Trigg, or those to whom 
he conveyed, are the beneficiaries of the restoration. It 
thus appears that Stockley's vendors did not lose their 
title to the site of the land washed awav bv the C«i- 



11 Gates] SPECIAL SEPTEMBEB TEBM, 1907. 177 
Stockley ▼. Cissna. 

tennial Cat-Off, but their original boundaries had al- 
ways been preserved to them; and, when this land was 
built up by the deposits of the river sediment, they 
may again assert title and right of possession. For the 
reasons stated, we are of opinion that, as against de- 
fendant Cissna and the other defendants, the complain- 
ant is entitled to recover the possession of the 131-acre 
tract described in the bill ; but he is not entitled to any 
relief as to the 1,050-acre tract. 

The cost of the appeal will be divided between the 
parties. 



119 Tenn.— 12 



178 TENNESSEE REPORTS. [119 Tenn. 

Holder v. State. 

Leb Holdeb V. Statb.* 
{Jackson. Special September Term, 1907.) 

1. OIBOUMBTANTIAL BVIDBHOB. Sufficient to sustain con- 
viction of murder in the first degree. 

Circumstantial eyidence stated, considered, and held sufficient 
to exclude every hypothesis but that of guilt, and to sustain a 
conyiction of murder in the first degree. (Past, pp. 181-209.) 

2. OBIMUfAL LAW. Kotive need not be proved when guilt is 
dear; motives remove doubts and strengthen the case when 
necessary. 

If the proof of guilt be dear, it is not necessary to prove a 
motive, in the ordinary meaning of that term. If a homicide 
is committed through the promptings of a wicked and depraved 
heart, it is not essential that the State should prove grudge, or 
quarrel, or incitement of cupidity, or jealousy, or other special 
thing that proximately aroused the lethal purpose. Proof of 
motive strengthens the State's case when strength is needed, 
and tends to dissipate doubts when doubts have been engen- 
dered. iPMt, pp. 199, 200.) 

8. ALIBI. Evido&ce insufficient to sustahi. 
ESvidence stated,^ considered, and held insufficient to establish an 
alibi, because inherently inconsistent, contradictory, and In- 
credible, and overwhelmed by the testimony of the guilt of the 
accused. {Post, pp. 203-209.) 

4. XVIDENOE. Recognition of a certain horse by the sound ol 
his feet in a lope; xtpnoxpert testimony as to identity. 
A nonexpert witness may give his opinion as to the identity of 
things; and a witness who testifies in a criminal case, that he 



*As to admissibility in criminal case of evidence of other 
crime, see note to People v. Molineux (N. T.), 62 K R. A., 193. 



11 Cates] SPECIAL SEPTEMBER TERM, 1907. 179 

Holder t. State. 

Ib familiar with the sound of a certain horse's feet when going in 
a lope oyer a bridge near his home, from haying often seen and 
heard that horse lope oyer the bridge, may testify as to his 
recognition of the horse from the identity of the footsteps he 
heard with those of the horse in question. {Post, pp. 209* 
210.) 

Case cited and approyed: Railroad y. Hunton, 114 Tenn., 609. 

5. SAMB. Of previous attempts to Idll is admissible to show the 
intent. 

In a prosecution for a patricide, eyidence tending to show pra- 
yious attempts by the accused on the life of the deceased and 
other members of the family is admissible and relevant for the 
purpose of exhibiting the animus or state of mind of tiie aa- 
cused towards the deceased, as indicating hostility or settled 
purpose to harm or injure the deceased. The said eyidence 
being competent to show the intent, it is not incompetent on the 
ground that it tends to show the commission of a distinct and 
independent crime. iPoai, pp. 210-217.) 

Case cited and approved: Williams v. State, 8 Humph., 686, 693, 
et seq. 

6. SAMB. Witness impeached by expression of opinion implying 
statement of fact clearly in conflict with his testimony. 

A witness may be impeached by proof of an expression made by 
him in the form of an opinion implying the statement of a fact 
clearly in conflict with his testimony; as, where, in a prosecu- 
tion for a patricide, the mother of the accused testifled in his 
behalf in support of an alibi, and, in answer to a proper ques- 
tion laying grounds for an impeachment, denied that shortly, 
after the killing, in a conversation with certain parties at a 
certain place and time, she asked if it could be possible that she 
had raised a boy that would kill his father, and, in response 
to a suggestion that perhaps he did not, replied that she would 
have to admit that he did it, the State was entitled to contradict 



180 TENNESSEE REPORTS. [119 Tenn. 

Holder v. State. 

and impeach her testimony in support of the alibi by proving 
in rebuttal that she in fact expressed such opinion. {Poet, 
W, 217-228.) 

Cases cited and approved: Scott v. State (Tex. Cr. App.), 93 S. W., 
112: Watson ▼. State (Tex. Cr. App.), 95 S. W., 116, 116; Bar- 
bee V. State (Tex. Cr. App.), 97 S. W., 1058; State v. Kingsbury, 
68 Me., 238; Commonwealth ▼. Wood, 111 Mass., 411; Mayer v. 
People, 80 N. T., 377; State v. Baldwin, 36 Kan., 14; Schell y. 
Plumb, 66 N. Y., 599. 

Cases cited and distinguished: Saunders v. Railroad, 99 Tenn., 
130; Franklin v. Commonwealth, 105 Ky., 237. 

7. BILLS OF EX0EPTI0N8. Ooort's charge and refusal of con- 
tinuance cannot be reviewed when not embraced therein. 
Where the bill of exceptions does not include the charge of the 
court nor the affidavit for a continuance, errors assigned upon 
the charge and for the trial court's refusal to grant a continu- 
ance cannot be considered or reviewed on a writ of error. 
{Post, p. 228.) 



PROM OBION. 



Writ of error to the .Circuit Court of Obion County. 
JosBPH E. JoNES^ Judge. 

Rice A. Pierce and Joseph L. Fry, for Holder. 

Attorj^ey-General Cates, for State. 



11 Gates] SPECIAL SEPTEMBER TEBM, 1907. 181 
Holder v. State. 

Mb. Justice Neil delivered the opinion of the Court. 

The plaintiff in error was indicted in the circuit court 
of Obion county for the murder of his father, Rev. B. 
L. Holder, and was convicted and sentenced to be 
hanged. Against this judgment he has sued out a writ 
of error in this court, and has prayed that the sentence 
be reviewed. 

The errors assigned are upon certain rulings of the 
circuit court in the admission of testimony and upon 
the sufllcieucy of the evidence to sustain the verdict. 
Passing for the present the first class of questions, we 
shall proceed at once to the case made by the evidence. 

About ten o^clock on the night of December 27, 1906, 
Warren Brown, a colored man, returning to his home 
from the town of Troy, in Obion county, saw, on the 
public road leading from Troy eastward to Rives in 
the same county, a horse and buggy, down in a de- 
pression on the south side of the road at the west end 
of a bridge, about one mile east of Troy; the buggy 
overturned and the horse entangled in the harness. He 
at once proceeded to the homes of two men nearby, 
Luther Lancaster and A. A. Everton, and reported his 
discovery. Mr. Everton and Charles Lancaster, the son 
of Luther Lancaster, accompanied Brown back to the 
bridge, and a more particular investigation was then 
made; but nothing further was ascertained, except that 
a laprobe was found under the overturned buggy, and 
that the horse was probably that of Rev. B. L. Holder. 
The horse was extricated from the harness, and was 



182 TENNESSEE REPOBTS. [119 Tenn. 

Holder ▼. State. 

then ridden by Charles Lancaster to the home of Mir. 
Holder. His wife and children were aroused, and they 
at once identified the horse as the property of the hus- 
band and father. All of them, as soon as they could 
put on their clothing, returned with Charles Lancaster 
to the scene of the disaster, which was only about 1,100 
yards from their house, and on the same road on 
which they lived. On the way th^y were joined by some 
of the neighbors, and soon quite a crowd of people gath- 
ered in, some from Troy; the news having been quickly 
disseminated by telephone. 

It appeared that on that afternoon, shortly before six 
o'clock, Rev. B. L. Holder had left his home to go to 
Troy, something more than a mile distant, to attend 
a Masonic meeting. He did not reach Troy, and did 
not return home. His horse and buggy were found in 
the predicament above mentioned at ten o'clock that 
night, and the family and the neighbors began their 
search for him. The night was cloudy, and it was 
raining a little; but the darkness was somewhat relieved 
by the moon, which now and then shone through the 
clouds^ The searchers had lanterns, and they explored 
the sides of the road between the fences, on each side, 
and to some extent the fields to the north and south, 
but not thoroughly, and nothing was discovered. About 
daylight, however, one of the party saw, about sixty 
yards away, within the south field, an object which, at 
that distance and in that light, presented to some the 
appearance of a low stump; but, as it was known there « 



11 Gates] SPECIAL SEPTEMBER TERM, 1907, 183 
Holder y. Stata 

were no stumps in that field, it was at once conjectured* 
to be the body of Mr. Holder. Mrs. Holder, indeed, 
said she could discern the overcoat which he wore when 
he left home the night before. All went over into the 
field, and it was soon plained beyond doubt that it was 
indeed the body of the missing man. 

On an inspection of the body, made soon after, it was 
discovered that there was a gunshot wound in the right 
side of the abdomen, close to the waistband of the 
trousers, from which the bowels were protruding. There 
was another gunshot wound Just under the heart; in 
each of these wounds the orifice being about the size 
of a silver dollar. One of the cheek bones was crushed 
in. The back half, or portion, of the head was crushed, 
so that it felt like a soft-shelled egg. There was a gash 
on the left side of the head through which the brains 
were visible. There were in all three gashes on the 
outside of the head. There was a slight imprint or 
indentation in the ground where it appeared, or seemed, 
his head had lain, and above the top of his head there 
was a hole in the ground that presented the appearance 
of the hole made where a stick has been stuck in the 
ground; and there were hair and blood all around the 
place. There was a considerable quantity of clotted 
blood on the ground, and for four or five feet around 
the ground was tramped, as if there had been a strug- 
gle. 

Further examination disclosed that the deceased had 
on only one overshoe. The other overshoe was found 



184 TENNESSEE REPOETS. [119 Tenn. 

Holder t. Statew 

sticking in the mud in the edge of the branch near 
the overturned buggy. Prom this point the tracks of 
the deceased^ plainly indicated by the track of an 
overshoe on one foot and the imprint of the shoe on 
the other foot without an oVershoe, were followed to 
the fence^ thence into the field, and through the field 
up to the point where his body was found. It was also 
discovered that there was another line of tracks run- 
ning parallel with those of deceased, and that they 
closed in with the tracks of the deceased at the point 
where the body was foun&. The person who made this 
second line of tracks had crossed the fence several feet 
to the east of the point where deceased crossed it Both 
lines of tracks showed that the men who made them 
were running. Both lines of tracks ran almost due 
south from the bridge until they neared a thicket in the 
field. Then the tracks of the deceased turned eastward, 
and presented the appearance of unsteadiness and un- 
certainty. At this point the tracks of the other party 
closed in, and intercepted those of deceased before the 
latter had covered more than a few feet going eastward; 
and here the body lay. 

At the east end of the bridge there was found lying 
in the road an empty shell, and at the west end of the 
bridge another empty shell. Each of these was a No. 
12 of the kind known as "New Chief,^' manufactured 
by the Western Cartridge Company for shotguns. These 
shells were of the size to fit a single-barreled shotgun 
which was owned by the deceased, and when that gun 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 185 
Holder v. State. 

was subsequently found there was a shell in it of the- 
same kind. 

The deceased was killed on Thursday night, Decem- 
ber 27th. The body was discovered the next morning, 
Friday, the 28th, and on that day the inquest was held. 
After the inquest was over, the body was removed to- 
the family home and prepared by the neighbors for 
interment. One of those assisting in the performance 
of this funeral rite was the witness W. A. Muse. After 
the body had been prepared, Mr. Muse suggested that 
a search be made for the gun. It should be here inter- 
posed that Mr. Holder, the deceased, had on the 15th 
of December purchased a single-barreled, breech-load- 
ing shotgun from Mr. Rochelle, a hardware merchant 
of Troy. He was accustomed to keep this gun in his 
bedroom, lying between the mattress and the cover of 
a bed in that room. The whole family knew where he 
kept it. On the afternoon of the day immediately pre- 
ceding the night he was killed— that is, in the late af- 
ternoon of Thursday, December 27, 1906— Mr. Holder 
went out upon his farm to look for some calves and took 
his shotgun with him, to hunt along the way. About 
supper time he returned, bringing the gun with him- 
His wife saw him take it into the house. She did not 
observe where he deposited it. It does not appear that 
any member of the family ever saw this gun after that 
time until its discovery by the witness Muse, after Mr. 
Holder's death, unless it was seen and used by the plain- 
tiff in error, Lee Holder. Mrs. Holder says she never 



186 TENNESSEE REPOBTS. [119 Tenn. 

Holder y. State. 

saw it again. Plaintiff in error testifies that he saw 
his father go off with it in the afternoon when he went 
to look for the calyes, and that he saw him when he re- 
turned at snpper time, but that it was so dark he does 
not know whether he brought the gun back or not. The 
only other member of the family who testified, Earl 
Holder, a boy of fourteen or fifteen years old, says 
practically nothing upon the subject. There were only 
two other members of the family at home— Nona, a 
girl of ten and Cecil, a boy of eight. They were not 
introduced. 

Resuming the history of the search for the gun : After 
Mr. Holder's body had been prepared for burial, 
Mr. Muse, joined by some other persons, went forth to 
find the gun. They were searching the bam. Whai 
they were within three feet of the place where the gun 
was subsequently found, the plaintiff in error came 
near and looked at them with an expression on his face 
evincing so much anger that Mr. Muse was frightened, 
and for fear plaintiff in error would do him harm he 
immediately ceased the search and went to the house. 
The next day, Saturday, after plaintiff in error had 
been placed under arrest, the search was renewed, and 
about twelve o'clock the gun was found. There was a 
hole in the east end of the bam, right at the ground. 
The barn was weather-boarded down to the ground; 
but there was a hole at the end that ran under the 
building, concealed from the outside in front by the 
planks. Into this hole the gun had been thrust, and 



11 Gates] SPECIAL SEPTEMBEB TERM, 1907. 187 

Holder v. State. 

behind it, so placed as to conceal it, there was pushed 
in a 2 by 4 inch scantling. So covered up and hidden, the 
' gun could not be seen from the front of the building, 
or from the end; but by going around on the other side 
of the barn, and peering under, the discovary ^as made. 

When the gun was drawn from its place of conceal- 
mait, it was found to be in the following condition : 
The stock was broken ofF, the barrel was bent in two 
different directiona It was rusty, and it had mud, or 
mud and hair, upon it, and there was blood on the 
end of it It was a single-barreled, breech-loading shot- 
gun of the make of Norvell Shapleigh Hardware Com- 
pany. It was thoroughly identified as the gun of Bey. 
B. L. Holder by the witness Ed Tumage, who was 
present when Mr. Bochelle sold it to Mr. Holder. Mr. 
Bochelle testified to the sale of a gun of the make above 
mentioned to Mr. Holder on the 15th of December, and 
Mr. Tumage, who was present when the sale was made^ 
Idaitified the particular gun by a knot on the left side 
of the stock. 

On the day immediately preceding the night on 
which the homicide was committed— that is, on Decem- 
ber 27, 1906— the plaintiff in error purchased of Ed 
Tumage, clerk of Mr. Bochelle, a hardware merchant 
of Troy, a box containing 26 New Chief shotgun cartr 
ridges of size No. 12, the proper size to fit his father's 
gun, as already stated, and the same kind found near 
the bridge. Mr. Turnage does not remember the time 
of the day when this purchase was made, whether 



188 TENNESSEE REPORTS. [119 Tenn. 

Holder r. State. 

morning or afternoon. The witness W. E. Huey, how- 
ever, says that on the afternoon of the 27th of De- 
cember, at 4:30 o'clock, he met plaintiff in error riding 
rapidly into Troy. He says he met him at the Troy 
roller mill, which is 250 yards from the main part of 
the town; that he had crossed the railroad and was-. 
* going into town. Probably this was the time when he 
bought the box of cartridges; but, whether this be true 
or not, it is certain that he bought the cartridges that 
day. Plaintiff in error does not explain this circum- 
stance; indeed, he does not refer to it at all in his tes- 
timony, either by way of affirmance or denial, further 
than his denial that he was in Troy that afternoon may 
be construed into a denial of this purchase. In fact, 
while the people were searching for his father's body, 
the night of the homicide, he spoke doubtfully as to- 
whether his father owned a gun. He said to the witness 
Muse that his father had bought a gun from Rochelle- 
at Troy, biit that he might have carried it back; that 
he did not know what he had done with it This state- 
ment was made in the face of the fact that he saw hi& 
father with this gun late Saturday afternoon when he^ 
went to look for the calves^ just before supper, and he 
saw his father when he started for Troy that night, 
and knew he did not take the gun with him. The plain- 
tiff in error does not deny that he made thQ foregoing 
statement to the witness Muse. ^^ 

The plaintiff in error admits that he knew on I^^iday, 
the next day after the homicide, that he was suspected 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 189 
Holder t. State. 

of the murder of hig father. On that day, about twelve 
o'clock, he took off the shoes that he had worn the day 
before, and put them in a side room, not the room that 
he usually occupied. He says that when he changed his 
shoes he did not then know that he was under sus- 
picion. However, the shoes were changed. These shoes 
were called for by the witness Andrew Harrison, and 
handed to him by Earl Holder, the young brother of 
the plaintiff in error. They are thoroughly identified 
^s the shoes which the plaintiff in error wore on the 27th 
of December, and on the morning of the 28th, when 
the peope were searching for the body. These facts are 
practically admitted in the plaintiff in error's testi- 
money, and that these were the same shoes he wore while 
the search for the body was proceeding was substan- 
tially proven by other witnesses. 

These shoes were peculiar, in that the left one was 
run down on the insida After the body of the de- 
i^eased was found, and while the people were still in 
the field where it lay, the attention of several of the 
party was drawn to the similarity of the tracks then 
made by the plaintiff in error to those made by the 
assailant of the deceased, and two or more of the party 
marked the plaintiff in error's tracks, those he made 
that morning, by sticking little sticks in them for fu- 
ture examination and comparison. The tracks of the 
assailant, as we have already said, paralleled those of 
the deceased until they come together at the point 
where the deceased fell. Prom this point the tracks 



190 TENNESSEE REPORTS. [119 Tenn. 

Holder v. Stata. 

of the assailant were plainly traceable as they led out 
of the field to the fence^ which he got over at a point 
twenty or thirty feet east of where he entered. These 
tracks made by the assailant were compared with those 
which were made by the plaintiff in error in the field 
on Friday morning (the^ound being soft both Thurs- 
day night and Friday morning) , and were found to be 
in all respects similar. When the shoes were procured^ 
they were placed in the tracks of the assailant and 
found to correspond accurately, except in a few in- 
stances, where people had stepped near the assailant's 
tracks and had forced the mud into the latter, thus 
squeezing the sides together: The correspondence was 
particularly noticeable when the run-down left shoe was 
put into the assailant's track. The comparison was 
perfect. 

The demeanor, conduct, and conyersation of the 
plaintiff in error during the search for his father's body, 
then in the presence of the body after it was found, 
subsequently at the inquest, later at the time of his 
arrest, and lastly when he was under arrest, were all 
unnatural and eminently challenge attention. 

F. C. Watkins testified that on the night of the homi- 
cide, when the people were searching for the body, plain- 
tiff in error "didn't seem to have much to say, didn't 
seem that anything bothered him." He exhibited no 
anxiety. "He was laughing and talking with the boys." 
He smoked a cigarette that night. Carried a Winches- 
ter rifle all night. (This gun was borrowed from a 



U Gates] SPECIAL SEPTEMBEB TERM, 1907. 191 
Holder t. State. 

neighbor, at the request of plaintiff in error, when the 
search began.) This witness asked him ^Hf there were 
no tracks leaving the fence, and the defendant said, ^Yes, 
there were two tracks leaving the fence, bnt they don't 
go bnt a short piece before they come back.' " To a sug- 
gestion that bloodhounds should be procured, the plain- 
tiff in error replied they would do no good, because it 
had rained. Mr. Muse testified that the next morning the 
matter of procuring the bloodhounds was again sug- 
gested, and in reply plaintiff in error said ^'he had 
rather not have them, as they might get an innocent 
party." That morning, when the body was discovered, 
the searching party was composed of the family of the 
deceased, Luther Taylor, W. A. Muse, John Powell, Lu- 
ther Lancaster, imd Mrs. Luther Lancaster. All went 
over to the body, but the plaintiff in error lagged be- 
hind. Mrs. Lancaster says: '^He was right around 
there somewhere, but I could not tell you right where 
he was. He was not with me and Mrs. Holder." Luther 
Taylor says, as they got over the fence and went into 
the field, plaintiff in error '^was following, on behind, 
about fifteen or twenty feet," and that when they reach- 
ed the body he was not with the family, but ^^was stand- 
ing off behind," and that he was ^^smoking a cigarette"; 
that he was smoking when he came down to the bridge. 
This was evidently his first attitude, since it is said by 
Mrs. liancaster later in her testimony that she saw him 
near the body. Likewise Mr. Muse states that he saw 
him there, near the body. The witness then testified: 



192 TENNESSEE EEPOKTS. [119 Tenn. 

Holder t. State. 

"Q. Tell the jury when he came up there what was 
his appearance, conduct^ demeanor, and actions. A. I 
never saw him do anything. He seemed to be uneasy. 
I believe he did smoke a cigarette. Q. Do you mean 
by a cigarette one of those bought cigarettes? A. No, 
«ir ; one that he made. Q. Did he make it there? A. 
Yes, sir.'' 

Plaintiff in error accompanied his mother to the house 
of a neighbor, after she had seen the body, and he then 
returned. Of his demeanor and appearance at this time 
the witness Watkins says: ^^Q. Was he close to the 
l)ody of his father? A. He came right up just behind 
the men that were standing there. Q. Was he in sight 
of the body? A. Yes, sir. Q. Tell the jury what his 
actions and demeanor were thera A. He walked up 
by the men. He could see his father lying there in the 
field. His eyes glanced around. Q. You say he look- 
ed at his father? A. Yes, sir; he looked at his father 
with as— well, I don't know how to express it, but he 
looked as though he was fierce and mad. He looked at 
him like he might have been looking at something he was 
mad at. Q. What was the expression on his face? A. 
That of being mad." 

Another witness, Mr. McDade^ says he saw plaintiff 
in error that morning out at the scene of the murder 
where the body was lying, and that he "was looking on 
as a casual observer." Andrew Harrison, who came up 
after they had moved the body near to the road for the 
inquest, says he there saw the plaintiff in error standing 



11 Gates] SPECIAL 9BPTEHBEB TERM, 1907. 193 
Bolder r. State* 

witbin thirty-iye or forty feet of hia father's body roll- 
ing a cigarette. The witneas, T. J. Easterwood^ says 
that ^^he seemied to he standi^ around looking on as 
other people wera^' Numerous witnesses testify that he 
did not shed a tear or show any sign of grief. The ]^ain- 
tiff in error admitted in his testimony that he shed no 
tears over his fath^s death, and said by way of expla- 
nation or palliation: '^I can't cry; I haven't cried, I 
reckon, in ten years." He was then questioned, and an- 
swered as follows: ^^Q. Did you or not feel acutely the 
death of your father? A. Certainly, I was grieved over it 
Q. They have been talking about your smoking a cigar- 
ette. Why did you smoke? A. I was smoking to quiet my 
nerves. I always smoke when I am bothered about any- 
thing/' These were questions propounded by his own 
counsd. The witness Muse says that when the plain- 
tifT in error saw his mother crying he went to her and 
she stopped; that he saw this occur twice. He slept in 
the same room where the corpse of his father was laid 
out Friday night, and slept soundly the night through. 
When he was about to be placed under arrest on 9&tur- 
day morning, December 29th, as the officer was proceed- 
ing to read the warrant to him, he said : ^^Let me have 
the damned thing. I can read it." The plaintiff in er- 
«ror admits this. Another thing that happened at the 
same time is thus stated by the witness O. B. McDade: 
^^I heard him ask a young man standing by him for a 

match. As to what he did, he stood there without bat- 
no Tenn.— 13 



194 TENNESSEE BEPORTS. [119 Tenn. 



Holder r. State^ 



ting an eye or moving a muscle^ rolled a cigarette, and lit 
it/' After he had been placed under arrest, and when 
he was on the way to jail, he said to the officer who had 
arrested him that if he had been armed, or had a pistol, 
when he was arrested, he would have "swapped it out" 
^th him. 

The murder was committed just at 6 o'clock on the 
evening of December 27, 1906. Mr. Lancaster* who liv- 
ed nearest the scene of the tragedy, was sitting in his 
back yard stirring a kettle of lard which he was ren- 
dering. Mrs. Lancaster was at the supper table. She 
says : **We heard one, then in a little while two more 
shots, and the whistle blew"— the 6 o'clock whistle of 
a mill at Troy. Just after the first shot th^ heard 
some one shout: "Help! help! murder! murder!" Mr. 
Lancaster says : "Then I could hear a noise like this : 
*0h ! oh ! oh ! o-o-o-o-oh !' " There was a greater interval 
between the second and third shots than between the 
first and second. The witness Sam Moffltt, who lived 
close to the roadside, says that before 6 o'clock he heard 
a buggy pass going towards Troy; next he heard going 
by in the same direction a horse in a lope, going, as he 
says, "tolerable fast"; then he heard a second buggy 
going in the same direction the horse had gone, west- 
ward towards Troy. He heard no other passing in that 
direction. After the man on horseback had passed, and 
after the second buggy had passed, he heard three shots 
in the direction of the bridge where the overturned bug- 
gy an4 entangled horse of the deceased were subsequent- 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 195 

Holder y. State. 

m Ml 

ly found. The n^ext thing he heard, a few minutes after 
the firing of the shots, was a horse loping back in the 
opposite direction; that is, eastward, in the direction in 
which the home of the deceased lay. The horse was 
going faster than before. The witness testified that the 
footstep of this loping horse sounded like those of Mr. 
Holder's big mare; that he was familiar with the sound 
of her hoof-beat when going in a lope across a bridge 
twenty-five or thirty yards from his house; that he had 
seen plaintiff in error ride by his house on this animal; 
and that he was accustomed to ride in a lope. Mr. Lan- 
caster also testifies to having heard a horse going back 
eastward shortly after the sound of the shots was heard, 
and he says the animal was going "pretty fast" It was 
too dark at that time of the year, at 6 o'clock, for either 
of these witnesses to have identified the rider, nor do 
they claim to have looked. Mr. Lancaster was render- 
ing lard in his .back yard, as already stated, and Sam 
MofKtt was in the kitchen seasoning sausage meat They 
merely heard the sounds as above related. 

With these facts before us, and one or two others now 
to be stated, the story of the crime can be put together 
without error in any substantial detail. 

There was to be a public installation of the officers of 
jthe Masonic lodge in Troy that night, and plaintiff in 
error knew that his father was going. The matter had 
been discussed in the family. Mr. Holder invited his 
wife to go with him, but she would not go and leave her 
little daughter Nona at home with the boys (so she 



196 TENNESSEE REPORTS. [U9 Teniu 

Holder ▼. State. 

testified) » aod the road was so heayy that Mr. Holder 
would not cons^t to have both of them in the boggy. 
He tben invited his son, the plaintiff in error, to go with 
him; bat he declined on the ground that he wished to 
go to sleep that night. Knowing his father was going 
to Troy that night, he went into town late in the after- 
noon/ at the time the witness Hn^ saw him, and pnr^ 
chased the box of cartridges. Shortly before, or about 
the time, his father left, he caught one of the horses and 
jmceded him to the bridge, and tha*e waylaid him in the 
darknefls. The first shot was fired at the east end of 
the bridge, where the first shell was found. This one 
missed, but frightened the horse, so that he ran and 
turned the buggy over at the west end of the bridge, and 
threw Mr. Holder out. Here the second shot was fired, 
where the second shieU was found, and was delivared 
at close range, as shown by the size of the hole and f>y 
Uie condition of the clothing of deceased. This was per- 
haps the shot that took effect in the side, as he probably 
could not have crossed the fence and run sixty feet after 
the shot in the breast near the heart After the second 
Act, file deceased crossed the fence into the field and 
ran to save his life, pursued by the plaintiff in error, 
and the third shot was delivered at the point where he 
fell in the field. The plaintiff in error then clubbed him, 
first with the stock of the gun, and, after that was bro- 
ken, tiien with the barrel, until it was bent into the 
shape in which it was found. He then dug into his 
victim's head with the muzzle of the gun, until the scalp 



n Gates] SPECIAL SEPTEMBER TEBM, 1907. 197 
Holder r. State. 

xv'as scarred and the brain exposed in the manner above 
detailed. The cries of "Help! help! murder! murder!*' 
were probably made at the bridge when the first shot 
was fired. The cries of "Oh! oh! oh! o-o-o-o-oh!" were 
probably made after the last shot was fired and when 
the clubbing began. After the plaintiff in error had 
completed this murder of his father, he hastened from 
the field, mounted the horse he had ridd^i to the scene, 
rode rapidly home, only a few hundred yards distant, 
turned the horse loose, and hid the gun under the barn, 
then went to the house, and acted as if nothing had 
happened. 

The foregoing conclusions are only inferences from the 
facts contained in the record, and stated above; but they 
seem to us, in their substantial purport, necessary and 
inevitable inferences. The cartridges which the plain- 
ti£F in error purchased fit the gun of the deceased with 
scarcely more accuracy than did his shoes fit the tracks 
of the undoubted assailant of the deceased. Who but 
the plaintiff in error could have procured the gun of the 
deceased from his home and hid it under the barn after 
it had been used? Not his mother; not the young boy. 
Earl; not the two small children, Nona and jOecil. 
There was no one else to do it. There is no intimation 
in the record that any stranger had any opportunity to 
get hold of the gun. Why did the plaintiff in error 
grow angry when he saw the searchers for the gun close 
to the place where it was hid, and frighten them away 
with the terror-striking aspect of his visage, if he did 



198 TENNESSEE KEPOKTS. [119 Tenn. 

Holder t. State. 

not know that the gun was hidden there? Why did he 
falsely seek to create the impression, when they were 
searching for his father's body, that his father owned no 
gun at the time, but had probably disposed of it by car- 
rying it back to the seller, unless he was prompted by 
the knowledge of his own fatal connectioji with that gun 
and was gropingly warding off suspicion? Why did he 
change his shoes, but for fear that a comparison of them 
with the tracks made by the murderer would lead to the 
conclusion that he himself was the murderer? Why did 
he brush aside the suggestion for the procurement of 
bloodhounds, first on the ground that they could be of 
no service because it had rained, and next on the ground 
that they might track an innocent person, unless there 
was couched in his heart a fear that they might track 
him? Why did he seek to mislead the searchers for the 
body, on Thursday night, when asked if there were no 
tracks that led into the field, by saying that there were 
two tracks, but they went only a little way into the field, 
then came right out again? The reply showed that he 
knew the existence of the tracks and there was no evi- 
dence that the tw^o tracks came out again. Why the 
false answer, unless there was a purpose to turn aside 
the course of a dangerous investigation? Was there 
ever a son, who loved his father, or who respected him 
even, or who had within his heart the sympathy for his 
kind belonging to our common humanity— was there ever 
such an one who sought for the body of his missing f ath- 
er in the spirit of levity manifested by the present plain- 



11 Cates] SPECIAL SEPTEMBEB TERM, 1907. 199 
Holder y. State. 

tiff in error? Did such a one ever so approach the 
body of that murdered parent as the plaintiff in error 
did, with halting and lagging steps? Did such a one 
ever look upon the face of his father, broken in and 
mutilated, his head crushed and his body pierced by 
gaping wounds, without a tear, without any sign what- 
ever of grief, but, on the contrary, with alternate in- 
<lifference and malevolence? What did the plaintiff In 
error's words mean when he was arrested? "Hand me 
the damned thing. I can read it." Was it to show 
that he was not alarmed? Do we hear one word of ex- 
postulation, any exclamation of surprise, any expression 
of horror, that he should be charged with so awful a 
crime as parricide, any natural outburst of human emo- 
tion? None! Only cold, impassive profanity, and sul- 
len bravado. And when he had been placed under arrest, 
and was on his way to jail, do we still hear any expres- 
sion of grief, or regret, or claim of innocence? None; 
only a boast that, if he had been armed, he would have 
resisted arrest 

In view of all these facts, can there be any doubt of 
the plaintiff in error's guilt? We think there cannot 
be, and we are of the opinion that the jury were justi- 
fied in finding that, although the evidence against the 
plaintiff in error was wholly circumstantial, no hypo- 
thesis could be entertained under it other than his guilt. 

It is insisted that no motive is shown. If the proof 
of guilt be clear, it is not necessary that there should be 
proven a motive, in the ordinary meaning of that term. 



200 TENNESSEE BBPOBTS. [119 Tenn. 

Holder t. State. 

If one man kill another through the promptings of a 
wicked and depraved hearty it is not essential that the 
State should prove some grudge, or quarrel, or Incite- 
ment of cupidity, or jealousy, or other special thing that 
proximately aroused the lethal purpose, although it be 
true that, when such things are proven, they add strength 
to the State's case when strength is needed, and tend to 
dissipate doubts when doubts have been engendered. 
But in the present case certain facts are proven which 
go far to explain the plaii^iff in error's motiva At the 
age of fourteen the plaintiff in error gave evidence of an 
unruly and insubordinate disposition, and an impatience 
of parental control. At that age, without permission 
of his parents and without their knowledge, he left 
home and went to New Orleans. There he stayed three 
months and worked in a restaurant. He then returned 
home. Some time after he returned his father told him 
he either had to go to school "or get out away from 
him, one of the two." He then left home and went to 
the home of a neighbor, one Brack Stovall, and remained 
there a week. Afterwards, when he was sixteen years 
old, he again left home without his father's knowledge 
or consent, this time going to Los Angeles, Cal. Before 
he left he quit school, because, as he says in his testi- 
mony, he did not like the teacher. He says his father 
wished him to go to school. On this trip he remained 
away ten months. He says his purpose was to see the 
country; probably, also, to be with his brother Adolphus, 
who was there. From Los Angeles he went to Dallas, 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 201 
Holder ▼. State. 

Tex. ; thence to Shreveport, La. ; and from the latter city 
returned home. HiB mother testified that he has not 
left home on a trip since the time just mentioned, but 
that about a year before the murder his father whipped 
him with a pair of bridle reins because he took his (the 
father's) team and conveyed some boys to a baseball 
game at Union City. His mother testifies: "He has 
never been away from home since then.'' Plaintiff in 
error testified that the day before the murder, his father 
went to Union City to make arrangements for money to 
send him off to school, and that he was getting ready to 
go off to school. Several witnesses, persons not mem- 
bers of the family, and who visited the house only oc- 
casionally, testify that the relations between the father 
and son were pleasant. Plaintiff in error also says 
their relations were kindly; but thui we do not credit. 
Mrs. Holder says that her husband was kind to the 
plaintiff in error ; but, when he did anything his father 
did not wish him to do, "he would talk to him about it, 
and he never talked back or jawed back at him." The 
witness G. L. Williams, who worked on the farm a few 
months prior to the murder, says that Mr. Holder was 
a rough-speaking man; that he always spoke to him 
(Williams) roughly. He mentions an occurrence that 
took place out in the woods where plaintiff in error and 
his brother Adolphus were cutting wood. He states 
that he (Williams) went down to the place where the 
wood was being t:ut, and plaintiff in error was leaning 
on his ax, or had his ax in his hand, and that as he ( Wil- 



202 TENNESSEE EEPOBTS. [119 Tenn, 

Holder t. State. 

liams) came up^ plaintiff in error said, referring to his 
father, he had just been "raring on Dolphus." Prom all 
this we infer the case of a restive, unruly boy and a 
stem father, who tried ta do his duty by his son, but 
who corrected the son's derelictions with harsh speech 
and harsher corporal punishment. 

We can well believe that under such circumstances 
there was not much tender love between the parent and 
child — on the one hand a severe, exacting father; on the 
other, a restless, insubordinate, and rebellious son, al- 
ways inwardly chafing against the restraints imposed 
on him. It was perfectly natural, too, that the wild 
disi)osition which led him to abandon his father's home 
at the early age of fourteen and of sixteen, and the con- 
sequent reliance during these absences upon his own will 
and wishes, and the opportunity of giving rein to his 
own unchecked impulses and passions, would add to his 
impatience of authority and intensify the spirit of law- 
lessness within him. We can easily conceive how such a 
boy would resent, when seventeen years old, a castiga- 
tion with a pair of bridle reins, and that the memory of 
it would rankle in his heart We have seen that his fath- 
er had trouble with him on the subject of going to school, 
so much so that he had presented to the son, a year or 
two before, the alternative of going to school or of 
being driven from home. We have seen that on the 
very day before his death, the father had made arrange- 
ments to send this boy off to school. We know, from 
this boy's ccmduct when the people were hunting for the 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 203 
Holder Y. State. 

body of his father; and from his conduct after the body 
was found, and at the time of his arrest, and after his 
arrest, that he had grown hard, unfeeling, and fierce. It 
is not difficult to believe that the thought of parricide 
would arise in the perverted mind of such a youth, and 
that the small additional preparation for sending him 
off to school would furnish the momentum that would 
hurry the deadly thought into a deadly purpose, with 
the view of at once obtaining freedom from restraint 
and at the same time of avenging what we may well 
think appeared to his mind as the past tyrannies of his 
father. 

So far we have considered the case without bringing 
forward the defense interposed in the evidence. That 
defense, in addition to plaintiff in error's personal denial 
of guilt, is an alibi. His mother, his brother Earl, and 
he himself all swear tiiat at the time the murder was 
committed the plaintiff in error was sitting in his moth- 
er's room at their home. There are some variations in 
their testimony, but this is the substance of what each 
of them says. On this subject the plaintiff in error 
says that when his father left, starting to Troy, he "was 
in the hall, or out on the back porch at the water buck- 
et." He says that after his father left "I came back 
in the house and sat down about five minutes, got up 
and walked in the yard about two minutes and a half 
or three minutes, then came back and sat down. I came 
back in the house, and my mother and brother Earl, and 
sister, and my small brother, Cecil, were in mother's 



a04 TENNESSEE BEPOBTS. [119 Tenn. 

Holder ▼. SUte. 

room popping com. When I went out of the houae they 
liad just put the popper on the Btove, and when I came 
back they had just taken it off. I sat down and talked 
to mother until about half past 7 or 8. Then I went to 
bed." Further on in his testimony he says it was the 
children, Earl and Nona, that were engaged in popping 
corn. On cross-examination he testified that after hi» 
father left he went into the family room and sat there 
five or ten minutes; sat there smoking. The children 
were there, and his mother was in the dining room finish- 
ing the dishes after supper, putting them away. The 
children were popping com. He then stepped out in 
the back yard, and remained about 2^ or 3 minutes. 
Earl had the popper on when he went out, and was just 
taking it off when he went back. The corn was burning 
or smoking, and he told Earl about it. His mother waa 
in the room when he went back; She had finished the 
dishes. She was standing by a table looking at a paper. 
He sat there something like an hour and a half before 
any of those present (his mother, Earl, Nona, and 
Cecil) refirei. He r itired about 8 o'clock. At 6 o'clock 
he was sitting by the washstand in his mother's room. 
He heard the 6 o'clock whistle blow and looked at his 
watch. 

Mrs. Holder says that when her husband left she was 
standing just inside the door of her room, and that Lee 
was in the room sitting by the side of the washstand; 
that as soon as her husband left she returned to the 
dining room, leaving Lee still sitting by the washstand; 



11 Gates] SPECIAL 8EPTEMBEB TERM, 1907. 205 

Holder ▼. State. 

that what she had yet to do in the dining room before 
completing her wotk there was, to nse her own words, 
as follows: ''I had to poor the water out of my dish- 
pan and pour a little more in it, and wash out my dish- 
rag. Then I poured the wattt out and wiped out my 
dishpan, took the milk bucket and the milk cup, hnd 
hung them up. Then I walked across the room and 
fixed my chum, put a plate over tha^t, then walked back 
across the room and got a straight chair and put it 
against the door, under the door knob, and went on, in 
the other room. Just as I walked to the table Lee en- 
tered the room from the hall and sat down. He told 
Earl his com was burning. I looked up an said : Tea; 
your com is burning.' Q. When Lee came in, did you 
have hold of a paper? A. No, sir; I had just picked 
up the comb. I picked up the comb first and started to 
comb Cecil's hair, and when Lee spoke about the com 
burning I looked up and said, ^Yes^ Earl; you are bum- 
ing your com,' and Cecil turned away from us and went 
to see about the com, and Earl was opening the popper, 
and I told them they would bum their hands, and then 
I picked up a paper and went to reading." She further 
testified that from the time she stepped out of the room, 
leaving Lee there, to go to the dining room and perform 
the work remaining there to be done, until the time she 
returned to her room, not more than four or fiye min- 
utes elapsed, and that immediately after she entered 
the room Lee entered it, and did not leave it until 8 
o'clock, when he went to bed. Asked if she heard the 



206 TENNESSEE BEPOETS. [119 Tenn. 

Holder ▼. State. 

firing of a gun, or guns, that night, she answered : ^'I 
heard some firecrackers, as I thought; those large fire- 
crackers. Q. About what time did you hear them? 
How long after you came into the room? A. Earl had 
just taken his corn out and was eating that; that was 
the first popper of corn. Just as Cecil turned away from 
me when I had started to comb his hair, I heard some- 
thing go bang, baiig, bang, two or three times, and I 
thought it was the negroes shooting firecrackers. Q. 
State whether either one of the children went to the 
window and looked out. A. Cecil did. I told him to 
go there and maybe he could see some Soman candles 
go out, and I told him to put his hands up to his face 
at the window and he could see; but just then Earl said 
they were firecrackers, and Lee said : *0f course, they 
are firecrackers.* I said: *0f course, they are fire- 
crackers shooting; but they nearly always shoot Boman 
candles, too, when they are shooting firecrackers.* And 
while we were talking Cecil went to the window and 
looked, and said : 'Mammy, I don't see any.' And he 
jumi)ed back to the corn." On cross-examination Mrs. 
Holder said that her husband called her from the dining 
room to help him on with, his overcoat, and that as she 
entered her room in answer to this call, Lee followed her 
into the room, and that as soon as she had helped her 
husband on with the overcoat he went to the buggy; that 
after he left she returned to the dining room, and after 
she had finished her work there she went back to her 
room; that, as she entered it> Lee also entered; that she 



11 Gates! SPECIAL SEPTEMBER TERM, 1907. 207 
Holder v. State. 

started to comb CeciPs hair, as before related, then the 
matter of the burning popcorn arose and was disposed 
of, and she sat do^m to read, and ^^read from then until 
8, off and on"; that Lee was smoking his pipe part of 
the time; that she looked up once and saw him filling 
his pipe; that she does not know what else he was doing, 
except smoking, until he went to bed. 

The boy. Earl Holder, fifteen years old, when he testi- 
fied, said that as his father started off he (the witness) 
walked back into the kitchen (also used as a dining 
room) and picked up the popcorn popper and got some 
corn, and went right back into his mother's room, and 
while he was getting the corn Lee stepped out; that he 
had shelled about half an ear of popcorn when Lee came 
in, and was popping the com. From other parts of 
his testimony it is clear the witness means that Lee was 
in his mother's room when witness started to the kitchen 
to get the popcorn and the popper, and that as witness 
left the room to go to the kitchen, or while he was in 
the kitchen, Lee also left his mother's room and "went 
out into the hall, but came back as soon as the witness 
had shelled half an ear of popcorn, and while he was 
popping it; that he had just begun to pop the corn when 
Lee returned; that Lee did not leave the room again 
that night until he went to bed; that they were all talk- 
ing together and eating popcorn during the evening un- 
til bedtime— does not remember what his mother was 
doing, does not remember whether she was reading; that 
while they were eating the first popper of corn he heard 



208 TENNESSEB BEPOBTS. [19 Tenn. 

Holder r. State. 

three flrecrackero; that Lee was there in the room; that 
Lee came in whai witness was popping the flrst papp» 
of eom, and his mother also came in then ; that Lee came 
in and sat down, and told him that his com was burn- 
ing. 

When these three accounts of the matter are c(>mpar- 
ed with some attention to their details^ they are seen to 
differ materially. According to Lee's (plaintiff in er- 
ror's) testimony^ he was standing in the hall, or on the 
back porch at the water bucket, when his father started 
to Troy. According to his mother and Earl, he was in 
his mother's room. According to plaintiff in error's 
testimony, after his father left he went into his mother's 
room and sat there five or ten minutes, then went out 
and remained 2^ minutes; that when he entered the 
room the children were popping com, and when he re- 
turned, the com they had put on the stoye was burning, 
and he called their attention to it. According to Earl, the 
plaintiff in error entered the room when they had just 
put on the first popper of com, and did not go out any 
more, but remained in the room until bedtime. Accord- 
ing to the plaintiff in error, when he first entered the 
room his mother was there with the children. According 
to her testimony he entered the room just after she did. 
According to plaintiff in error and his mother, he left 
the room after the first popper of corn had been put on, 
and returned before it was taken off, in time to inform 
Earl that the corn was burning. According to Earl the 
plaintiff in error came in after the first popi>er of own 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 209 
Holder y. State. 

had been put on and did not leave the room after that 
time. According to plaintiff in error, he talked to his 
mother from the time his father left until about half 
past 7 or 8 o'clock, his bedtime. According to his moth- 
er, she read during that time. She says nothing about 
talking to Lee; that she did not see him do anything but 
smoke; that she looked up once, and saw him filling his 
pipe. Earl says he does not know what his mother was 
doing, does not know whether she was reading or not; 
that they spent the time talking and eating com from 
supper time to bedtime. 

In view of these contradictions and incongruities be- 
tween the several accounts of the alibi, it is impossible 
to place reliance in the testimony of either of the wit- 
nesses. Moreover, we do not believe that any one would 
mistake the sound of a shotgun, threefourths of a mile 
away, for the popping of firecrackers. In addition to 
all of this, the plaintiff in error told the witness Muse 
that he was absent from the house ten or fifteen min- 
utes. The story of the alibi is inherently inconsistent 
and incredible. But, aside from this, it cannot stand 
against overwhelming testimony of plaintiff in error's 
guilt furnished by the other evidence in the case which 
we have already set out and considered. 

We shall now consider the assignments made upon 
questions of evidence. 

It is insisted that error was committed in the admis- 
sion of the testimony of Sam Mofl&tt concerning his 
119 Tenn.— 14 



210 TENNESSEE REPORTS. [119 Tenn. 

Holder v. State. 

recognition of the horse ridden by his house in the early 
eyening of December 27th, just before and just after 
the murder, as one of Mr. Holder's horses, by the famil- 
iar sound of its hoof -beat upon the bridge near his home. 
The objection is to the recognition pf the horse merely 
by the sound of its feet, without sight of the animal. 
The ground stated in the objection was that it was not 
comi)etent for the witness to give his opinion upon such 
a subject. There is no force in this objection. The wit- 
ness testified that he was familiar with the sound of the 
horse's feet when going in a lope, from having often seen 
and heard the animal lope. It was competent for him 
to testify to the fact, and to give his opinion as to the 
identity of the footsteps he heard with those of the 
Holder horsa One may become acquainted with the 
gait of a horse, just as he can with the walk of a human 
being, or the sound of a man's voice. Nonexpert wit- 
nesses may give their opinion upon a variety of ques- 
tions, among others the identity of things. See Raih 
road V. Hunton, 114 Tenn., 609, and especially page 630, 
88 S. W., 182, 188 referring to and approving and quot- 
iDg from volume 1, section 676, of Elliott on Evidence. 

The next point relates to an item of evidence not pre- 
viously referred to in this opinion. 

In October, 1906, all of the family of Rev. B. L. Hol- 
der, except plaintiff in error, fell suddenly ill, including 
one G. L. Williams, a hired farmhand. The illness su- 
pervened immediately after eating supper, and was mani- 
fested by violent vomiting, which lasted, with some in- 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 211 

Holder v. State. 

tennissions, for several days. Some of the family were 
affected more violently than others; bnt it was five days 
before they had all recovered. Dr. Havener, who was 
sent for, first thought it was due to milk sickness; but 
upon examination of the calves, which he supposed had 
had access to the cows, and on finding them unaffected, 
he dismissed this theory. His next hypothesis was 
ptomaine poisoning; but this was likewise dismissed. 
His final conclusion was that the illness was due to arse- 
nical poisoning. There were two symptoms, however, 
of such poisoning which he does not testify were present 
—the burning sensation in the stomach and purging. 
The former he says nothing of, and the latter he refers 
to, but says he gave medicine to produce purging, and 
therefore cannot say whether there would have been 
such result without the medicine. Dr. Nailing testified 
that the burning sensation does not always follow. 
There were other symptoms mentioned by him— cold, 
clammy skin and sunken eyes — that were not referred to 
in the testimony of Dr. Hevener. Dr. Nailing also 
speaks of colicky pains, and spasms in the calf of the 
leg. These symptoms were not referred to by Dr. Heven- 
er, the attending physician, in his evidence. Dr. Nail- 
ing further testified that a patient suffering from acute 
arsenical poisoning would not be able to get up under 
two weeks^ time, because it affects the nerves, and there 
is more or less paralysis of the legs. Mrs. Holder testi- 
fied that she arose and cooked breakfast the next morn- 
ing, and that the family ate breakfast, but that they 



212 • TENNESSEE REPORTS. [119 Tenn. 

Holder v. State. 

continued ill for several days. Dr. Nailing testified that 
ptomaine poison would produce vomiting, also cramping 
and purging. Davie Bright testified that about two 
weeks before the sickness of the Holder family he sold 
to plaintiff in error a box of Rough on Rats. Plaintiff 
in error testifies that after his father recovered he learn- 
ed that he was charged with purchasing this substance 
from Davie Bright, and that he went to see the latter, 
and cursed him, and denied that he had made the pur- 
chase, and he denied upon the witness stand that he 
had bought the substance. Davie Bright, however, is 
shown to be a young man of unimpeachable character, 
and he says the purchase was made. The plaintiff in 
error, besides his personal interest in the issue, and the 
facts^ already referred to, which go to his credit, also 
admits that he forged his father's name to a check. We 
have no doubt that he bought the Rough on Rats. 

G. L. Williams testifies that during the day, on the 
night of which the illness of the family occurred, plain- 
tiff in error and he were gathering com; that plaintiff 
in error was laughing and talking while the work was 
going on; that during the afternoon they went to the 
well at the house to get water; that plaintiff in error 
went into the house and remained ten or fifteen minutes, 
all of the family being absent from the house; that 
plaintiff in error said he was going into the house to 
change his socks; that after they quit gathering corn 
tliat day plaintiff in error said he was sick and was not 
going to eat any supper; that he had not been complain- 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 213 

Holder v. State. 

ing of being sick during the afternoon ; that plaintiff in 
error went in to the sapper table and sat down; that he 
took a biscuit and cut off one corner; that witness then 
said, "I thought you were not going to eat any supper," 
and plaintiff in error then ^^just shoved his plate back" 
and ate only one or two bites; that witness ate sui^r, 
as did all the rest of the family except plaintiff in error, 
and all, except plaintiff in error, became sick; that wit- 
ness felt ^'curious" before he got up from the table; that 
he smoked, and still felt '^curious"; that plaintiff in 
error was lying on the bed, laughing at him; that he be- 
gan vomiting, and continued vomiting until 11 o'clock; 
that plaintiff in error laughed at him when he was 
vomiting; that all of the sick ones were affected as he 
was, vomiting; that witness went to his brother's 
house, two hundred yards away, and sent for some medi- 
cine to check his vomiting, and after taking two doses 
he grew quiet and slept; that before witness left Mr. 
Holder gave plaintiff in error some calomel. Mrs. 
Holder testified that plaintiff in error was not well, 
but was suffering with fever, and that he took some 
calomel that night, under direction of his father, as a 
preparation for more specific medication for chills and 
fever, which she says he was suffering from. Plaintiff 
in error explains the circumstance of going into the 
house, or telling Williams at the time that he was going, 
to change his socks, by saying that his feet had a ten- 
dency to sweat and scald, and that he was compelled 
to change his socks frequently, and his mother in her 



214 TENNESSEE REPOBTS. [119 Tenn. 

Holder ▼. State. 

testimony sustains him in this. Plaintiff in error de- 
nies, in his testimony, that he placed poison in the 
food of the family. There was no analysis of the con- 
tents of the stomach thrown up by any of the persons 
who were ill. A box of Bough on Bats, the ordinary 
commercial package, was exhibited in evidence, which 
Davie Bright testified was similar to the one he sold 
plaintiff in error. No analysis was made of the con- 
tents of the box produced which had been sold to plain- 
tiff in error. The testimony of Davie Bright, a drug 
clerk, and of Dr. Hevener and Dr. Nailing, was that 
Bough on Bats was a poison— Dr. Nailing that the com- 
mercial substance known as ^^Bough on Bats'' was 
composed of arsenic and charcoal ; Dr. Hevener, that it 
was forty or fifty per cent arsenic. Mrs. Holder tes- 
tified that the family continued to use the foodstuffs 
they had on hand the next morning, except the milk; 
that they did not use the milk. 

The objection stated in the assignment of error is 
that the testimony was incompetent, because it tends 
to show the commission of a distinct, independent 
crime; also that there is nothing to show that plaintiff 
in error put any substance in the food partaken of by 
the family, hence that the testimony recited bore no 
relevancy to the issua 

These objections were substantially made on the trial 
to the testimony of Dr. Hevener, but not to the testi- 
mony of the other witnesses. 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 215 
Holder v. State. 

The other witnesses, except G. I* Williams, were in- 
troduced by plaintiff in error. 

As to the first point: So far as concerns the general 
question, we are of the opinion that previous attempts 
on the life of a person by the accused may be shown 
for the purpose of exhibiting the animus or state of 
mind of the accused towards the deceased, as indicating 
hostility, or a settled purpose to harm or injure that 
person. Williams v. State, 8 Humph., 585, 593, et seq. 

In Hughes on Criminal Law and Procedure it is said : 
^'Evidence of previous unsuccessful attempts to com- 
mit the same crime for which the accused is on trial is 
admissible.-' Id., sec. 3134. To the same effect, see 
48ection 3137. In section 3138 it is said: "It is not a 
valid objection to evidence, otherwise competent, that it 
lends to prove the prisoner guilty of a distinct and 
different^ offense. Evidence of other offenses is ad- 
missible to prove intent, motive, knowledge, malice, and 
the like." In section 3140 it is said : "On a charge of 
attempting to poison a person by putting poison in his 
cup, it is proper to show in the evidence that a few days 
before, on a different occasion, a similar substance was 
found in his cup and saucer, and that drinking from the 
cup made him sick. Other facts than those alleged in 
the indictment may be shown in the evidence for the 
purpose of showing a system or plan of the party con- 
cerned in the transaction alleged in the indictment." 
In section 149 it is said: "Where the prisoner was 
charged with the murder of her child by poison, and 



216 TENNESSEE REPOBTS. [119 Tenn. 

Holder v. State. 

the defense was that its death resulted from an acci- 
dental taking of such poison, evidence that two other 
children of hers and a lodger in her house had died 
previous to the present charge under like circum- 
stances by poison was held to be admissible." In Whar- 
ton on Homicide it is said: "Previous attempts to 
kill the person afterwards killed warrant an inference 
of express malice or deliberation and premeditation 
in killing^ as a presumption which will sustain a con- 
viction of murder in the first degree." Id. (3 Ed.), p. 
235, sec. 155. In the same work it is said: "Prior 
attempts by the accused to kill the deceased may be 
given in evidence, and so may evidence of a prior ag- 
gravated assault. And lapse of time between the 
previous quarrel or difficulty and the homicide 
goes only to the weight of the evidence. It does 
not affect its admissibility." Id., p. 925, kec. 599. 
There can be no question, then, of the competency of 
evidence of previous assaults upon, or attempts to kill, 
the deceased by the prisoner. 

As to the second point, the relevancy of the evidence, 
we think this equally clear. The weight of the evidence 
was for the jury; but we think there can be no doubt 
that the facts recited, either when taken all together 
or when we consider alone those brought out by the wit- 
nesses for the State, have a tendency to show that the 
plaintiff in error attempted to poison the whole family 
there at home (Dolphus was absent), including his fa- 
ther. Whether the inference afforded be very slight, 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 217 

Holder v. State. 

or what degree 'of strength the facts show, we need 
not determine. It is sufficient to say that the testimony 
had some relevancy, and was therefore competent. 

The next question arises upon the following occur- 
rences shown in the bill of exceptions: As before 
stated, Mrs. Holder, the mother of plaintiff in error, 
was introduced in his behalf, and gave evidence tending 
to support an alibi for him; that is^ to the effect that 
plaintiff in error was in her family room at home, 
in her presence, before 6 o'clock, at 6 o'clock, and there- 
afteop until 8 o'clock, on the night of December 27, 1906, 
and hence could not have killed his father in a field near 
the road, three-fourths of a mile away, at 6 o'clock. 

On cross-examination, Mrs. Holder was asked the 
following question : "At your house, on Saturday after- 
noon, after your husband had beeiT killed, in the pres- 
ence of those parties you have stated were there, state 
whether or not you said this: ^s it possible that I 
have raised a boy that would kill his father?' And 
your daughter Nona said, in substance: *Maybe Lee 
didn't kill him.' And you replied: TTes; I will have 
to admit that he did it' " She answered : "I didn't say 
anything like it." 

When the question was put, the attorney for the 
plaintiff in error objected on the ground that it was 
incompetent, because it called for the mere opinion of 
the witness; that is, because the witness was asked to 
state whether she had expressed the opinion referred to. 
The objection, however, was overruled, and the wit- 



218 TENNESSEE REPORTS. [119 Tenn. 

Holder ▼. Stata 

ness was directed to answer^ and made answer as just 
set out. 

Afterward Mrs. Hevener, one of the persons referred 
to in the question as being present^ was placed upon 
the stand in rebuttal. After identifying time and place, 
Mrs. Hevener was asked questions and answered as 
follows : 

"Q. I would ask you to state, Mrs. Hevener, while 
you were there, you heard .this statement made by Mrs. 
Holder, or this in substance'^ — ^repeating question pro- 
pounded to Mrs. fiolder; and this was followed by a 
repetition of the objection above quoted. The witness 
answered that Mrs. Holder did make the statement re- 
ferred tjo, in substance. 

Subsequently in the course of her examination the 
circumstances under which the statement was made 
were thus detailed by Mrs. Hevener, and the actual 
words used according to the witness' recollection : 

"I walked up to her bedside. I did not speak, for I 
feared to speak to her, for I did not know how she 
was. She opened her eyes and saw me''— witness was 
a sister of the deceased— "and began screaming, and 
said, ^Oh, how can we stand it?' And I said: *It is 
awful bad; but we have to stand it.' I turned. I 
couldn't stay there, and I started to walk out, and 
stopped at the foot of her bed, and she said: 'Is it 
possible that I have raised a child that would kill his 
poor papa?' And Nona began to console her, and said: 
'Mama, don't you worry and kill yourself, for what 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 219 
Holder ▼. State. 

would we do without you, and maybe Lee didn't do 
it' She said: *Yes, he did, Nona; yes, he did.' " 

It is insisted by the State that the evidence was com- 
petent for the purpose of impeaching the witness Mrs. 
Holder; secondly, that, if incompetent, no injury was 
done the plaintiff in error, inasmuch as this evidence 
was withdrawn from the jury. 

The charge is not a part of the bill of exceptions, 
hence cannot be looked to; but the attorney-general re- 
fers to the fourteenth paragraph of the motion for a 
new trial as containing an admission that the evidence 
was withdrawn. That paragraph reads as follows: 
^*The court permitted the attorney-general to ask Mrs. 
J. B. Hevener certain questions tending to impeach 
Mrs. B. L. Holder, which questions were objected to 
by defendant, and said questions were not withdrawn 
from the jury until the charge of the court; and it is 
attempted to withdraw said illegal and irrelevant tes- 
timony. It is submitted that said illegal and incom- 
petent testimony was calculated to prejudice and may 
have prejudiced the interests of the defendant, and 
should never have been permitted to go before the jury, 
and the court was in error in so doing." 

As to the question of competency : The rules appli- 
♦cable to the subject are thus laid down in Wigmore on 
-Evidence (volume 2) : ^^What amounts to a self-con- 
tradiction. In the present mode of impeachment there 
must, of course, be a real inconsistency between the 
ctwo assertions of the witness. The purpose is to in- 



220 TENNESSEE BEPOBTS. [U9 Tenn. 

Holder v. State. 

duce the tribunal to discard the one statement because 
the witness had also made another statement which 
cannot at the same time be true. Thus^ it is not a mere 
difference of statement that suffices; nor yet is an 
absolute oppositeness essential; it is an inconsistency 
that is required. Such is the possible variety of state- 
ment that it is often difficult to determine whether this 
inconsistency exists. But it must appear prima facie 
before the impeaching declaration can be introduced. 
As a general principle^ it is to be understood that this 
inconsistency is to be determined, not by individual 
words and phrases alone, but by the whole impression 
or effect of what has been said or done. On a com- 
parison of the two utterances, are they in effect incon- 
sistent? Do the two expressions appear to have been 
produced by inconsistent beliefs?'' Id., sec. 1040. 

The author continues in the next section: ^^Opinion 
as Inconsistent. A common difficulty is to determine 
whether some broad assertion, offered in contradiction, 
really assumes or implies anything specifically incon- 
sistent with the primary assertion. The usual case of 
this kind is that of a general statement upon the merits 
of the controversy, which is now offwed against a wit- 
ness who has testified to a specific matter. Thus^ A 
testifies for the prosecution that he saw the defendant 
near the scene of the alleged arson; it is offered to 
show that he has elsewhere declared that he is sure 
the defendant is innocent; is this admissible? The 
usual answer of some courts is that the declaration 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 221 
Holder y. State. 

should be excluded, because it is a mere opinion. This 
is unsound (1) because the declaration is not offered 
as testimony, and therefore the opinion rule has no 
application; and (2) because the declaration in its 
opinion aspect is not concerned, and is of importance 
only so far as it contains^ by implication some con- 
tradictory assertion of fact. In short, the only proper 
inquiry can be: Is there, within the broad statement 
of opinion on the general question, some implied as- 
sertion of fact inconsistent with the other assertion 
made on the stand? If there is, it ought to be received, 
whether or not it is clothed in or associated with an 
expression of opinion.^' Id., sec. 1041. 

Necessarily there will be much room for difference of 
opinion in applying the rule to concrete cases as they 
arise. We think, however, it is clearly applicable to 
the case before us. Mrs. Holder went to the place 
where her husband was murdered, and saw him as he 
lay there dead, about three-fourths of a mile from 
home, in a field* on the roadside. If her son was in 
her presence all the time, with the exception of four 
or five minutes, after his father left, until he went to 
bed at 8 o'clock, she knew that he could not have com- 
mitted the murder. Her statement, therefore, to Mrs. 
Hevener, or in Mrs. Hevener's presence, that she must 
admit her son was guilty, or that she believed him 
guilty, while in form the statement of an opinion, nec- 
essarily implied a contradiction in fact of her subse- 
quent statement on the witness stand that her son was 



222 TENNESSEE REPORTS. [119 Tenn. 

Holder v. State. 

in her presence at the time of the murder; that is^ 
necessarily implied the statement that her son was not 
in her presence at the time she said he was. If he 
had really been with her all the time she says he was^ 
a belief of his guilt could not have entered her mind. 

We are referred to our own case of Saunders v. Citj; 
& Suhurhan Railroad Co., 99 Tenn., 130, 41 S. W.. 
1031, as being in conflict with the rule laid down by 
Wigmore. In that case it appeared that Dr. Saunders 
had been injured while crossing a street railroad track 
in his buggy, for which injury he sued the company. 
His daughter was with him at the time the accident 
occurred. On the trial she gave testimony which tended 
to show that the servants of the street railway company 
were negligent, and that by this means the injury was 
inflicted upon her father. For the purpose of contradict- 
ing her, she was asked on cross-examination if she did 
not state at the time, in the presence of certain persons^ 
that the accident was due to her father's fault. She 
denied that she made any such statement. The railroad 
company introduced witnesses in rebuttal who testified 
that she did make that statement in their presence at 
the time and place fixed in the impeaching question. 
When the case reached this court on appeal, it was held 
error to permit the asking of the imi)eaching questions 
and the introduction of the subsequent impeaching evi- 
dence. It is true that the reason given in the opinion 
of the court was that the statement made by Miss 
Saunders was the mere expression of an opinion on her 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 223 
Holder y. State. 

part, which would not have been admissible as original 
evidence, and could not, therefore, be admissible in con- 
tradiction; and numerous cases so hold, as shown by 
the citations contained in that opinion, and the same 
rule may be found laid down in certain subsequent 
Texas cases, viz.: Scott v. 8tate (Tex. Cr. App.), 93 
S. W., 112; Watson v. State (Tex. Cr. App.), 95 S. W.^ 
115, 116; Barhee v. State (Tex. Cr. App.), 97 S. W., 
1058. But we think a truer expression of the under- 
lying reason, or the governing principle, is contained 
in the excerpts which we have made from Wigmore; 
and the case of Saunders v. City & Suburhwn Railroad 
Company was well decided vnthin that principle. The 
liability of the railroad company depended upon mixed 
(questions of fact and law, that could be determined only 
by the court and jury, while the opinion of Miss Saun- 
ders, if comi)etent, could be of value only as placing 
her in the position of the tribunal. Her opinion that 
her father was to blame involved the proposition that 
her father's negligence was the proximate cause of the 
accident, and necessarily involved a survey of all of the 
attending facts, and a conclusion or inference there- 
from. There was in her expression of opinion no im- 
plied statement of fact inconsistent with the testimony 
which she had given. Of course, the opinion of wit- 
nesses, except in the well-defined class of cases where 
opinion evidence is admissible, cannot be used for or 
against one or the other of the litigants, either as direct 
evidence, or by way of impeachment; but this observa- 



224 TENNESSEE BEPORTS. [119 Tenn. 

Holder v. State. 

tion does not apply where the expression in the form 
of an opyiion implies the statement of a fact clearly 
in conflict with the statement of the witness on the stand 
whose testimony is sought to be impeached thereby. 

Some illustrations from the cases in other jurisdic- 
tions may be found useful. 

In State v. Kingsbury, 58 Me., 238, the prisoner was 
convicted of inciting, hiring, etc., one James Kitchen 
to burn a house. The prisoner's wife (a competent wit- 
ness in that State) testified that she was present during 
the conversation between defendant and Kitchen, and 
that nothing was said or done by the defendant to 
mduce Kitchen to bum the house, and that defendant 
did not furnish Kitchen a certain kerosene lamp filler 
with which it was sought to prove the house was fired. 
The State offered proof, which was admitted, that 
witness had said to Sawyer, about a half hour after 
her husband's arrest, on being told by Sawyer that 
Kitchen had confessed that defendant had hired him 
to burn the house, viz. : "Well, he would never have 
done it if it had not been for others. . . . Others 
are more to blame than he was.'' This was held com- 
petent The court said : "Whenever a witness has tes- 
tified to any material facts, any acts or declarations of 
his which appear to be inconsistent with such 
testimony are comi)etent by way of contradiction. It 
is not necessary that the contradiction should be in 
terms. Statements by the witness^ inconsistent with 
his testimony on material matters, may be proved 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 225 

Holder y. State. 

against him/' In Convw. v. Wood, 111 Mass.^ 411, a con- 
viction for overdriving a horse, defendant's mother tes- 
tified that she saw him driving the horse, and that he 
did not overdrive* it. The State proved, after laying 
proper grounds, that she had said to a witness that de- 
fendant was guilty. This was held competent. In 
Mayer v. People, 80 N. Y., 377, it appeared that there 
was a conviction for obtaining goods by false pretensea 
Ferdinand Mayer, an uncle of the prisoner, had testi- 
fied for him; his testimony strongly "tending to sus- 
tain defendant's denial that he had made the repre- 
sentations charged." The State was permitted to prove, 
as tending to impeach his testimony, that the witness 
had said tUkt defendant "had done a great wrong" in 
the matter, and that defendant and his partner had 
^^acted as thieves." In the case of State v. Baid/ivm, 36 
Kan., 14, 12 Pac., 318, there was a conviction of William 
Baldwin for the murder of his sister. The case was 
made out by circumstantial evidence ; the theory of the 
defense being that the deceased suicided. In its opin- 
ion the court said : "The objections urged to the ques- 
tions asked the clergyman, Mulford, on cross-examina- 
tion, are not good. After stating, in his examination 
in chief, what the conduct and appearance of the de- 
fendant was soon after the death of his sister, with a 
yiew of showing the conscious innocence of defendant, 
it was proper to inquire if the witness had not stated, 
before the coroner's jury, that defendant impressed him 

119 Tenn.— 16 



226 TENNESSEE REPORTS. [119 Tenn. 

Holder r. State. 

at once of being guilty of the murder. It was allow- 
able on cross-examination, and, besides, if denied, it 
afforded a foundation for impeaching the witness. He 
gave a qualified answer, saying that he would not deny 
or affirm that he had so stated, but did deny stating 
that he had a thorough impression of his guilt, and he 
added that the appearance of the defendant was that 
of a painful surprise that any one should suspect him 
of the oflfense. We cannot agree that the rule was er- 
roneous." In the case of Franklin v. Commomoealth, 
105 Ky., 237, 48 8. W., 986, Noah Franklin was con- 
victed of murdering Daisy Sullivan, and sentenced to 
life imprisonment The deceased was a young woman 
about seventeen years of age and about to become a 
mother. There was evidence tending to show that the 
prisoner was the author of her ruin. The evidence re- 
lied upon by the State was wholly circumstantial. Ed. 
Howard, a witness for the State, testified on the trial 
that over a month before deceased was killed, defendant 
told him he was going to kill her, and that some con- 
versation followed this statement as to the manner and 
method by which she should be killed. After stating 
this testimony, the court said in its opinion: '^It ap- 
peared in evidence that appellant was discharged on 
the examining trial, and the witness Ed. Howard was 
asked, on cross-examination, if he did not say to W. J. 
Cox and two others, after this trial, at a time and 
place specified, that appellant had come clear, and that 
he knew he had nothing to do with the killing of Daisy 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 227 
Holder r. State. 

Sullivan. He denied making this statement, and the 
court refused to allow him to be contradicted on this 
point by the other witnesses. Without his testimony, 
I do not think appellant could possibly have been con- 
victed, and it seems to us that his statement, at the 
time, that he knew appellant had not killed Daisy Sul- 
livan, was so different from his testimony given on the 
trial that the court should have admitted proof of his. 
having made those statements for the purpose of im- 
peaching his testimony."' In Schell v. Plumb et dl., 55 
N. Y., 599, plaintiff sued for an alleged breach of con- 
tract made with defendant's testator to support plain- 
tiff during her life. Jacob Harris^ a witness for de- 
fendant, said that he was present during conversations 
between plaintiff and defendant's testator in which 
plaintiff admitted that she had no such contract. On 
cross-examination he was asked if, since the death of 
testator, he had not, in speaking with reference to the 
alleged contract, said that "the old lady ought to have 
|1,000 out of the estate." He denied this, and plaintiff 
was permitted, over objection, to prove that he had so 
stated. This was held not error. 

The whole court being of the opinion that the tes- 
timony objected to was competent, we need not go into 
the question whether the recital in the motion for new 
trial upon the subject of the withdrawal of the evidence, 
nothing else* appearing in the record upon the subject, 
is sufficient evidence of the fact that there was a with- 
drawal in proper form, a subject upon which there is 



228 TENNESSEE REPORTS. [119 Tenn. 

Holder v. State. 

a difference of opinion among the members of the 
court. 

Errors are assigned upon the charge of the court; 
but, as that instrument was not made a part of the bill 
of exceptions, they cannot be considered. There was 
also an error assigned upon the refusal of the court to 
entertain an affidavit for a continuance, but this affi- 
davit failed, also, of incorporation into the bill of ex- 
ceptions, and the point cannot be considered. 

After full consideration, as above, of the points pre- 
sented for reversal, we are of opinion there was no 
error in the judgment of the court below, and it must be 
affirmed. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 229 
State, ez rel., v. Taylor. 

State^ €x rel. Bate Bond^ State Revenue Agent, v. 
Thomas J. Taylor, County Trustee. 

{Jackson. Special September Term, 1907.) 

1. TAXATION. Ooonty tmstee possesses Jurisdiction to reassess 
or back assess property for taxation, when. 
A biU aUeglng: that a street railway company's property was 
glaringly and inadequately assessed for taxation at much less 
than its cash value for certain specified years; that the com- 
pany's schedule returns were fraudulently incorrect, etc.; and 
that this, in conjunction with the negligence of the assessors, 
resulted in relieving a large part of such property from tasa^ 
tlon, states a case for the exercise of the county trustee's Jur- 
isdiction in a proceeding before him for the reassessment or 
back assessment of defendant's property for taxation. (Post, 
pp. 233-246.) 
Acts cited and construed: Acta 1903, ch. 285, sec. 81, subsecs. 
2, 3, and 6. 

9. 8AMB. Mandamus will lie to compel county trustee to take 
jurisdiction of proceeding for reassessment or back assessment 
of property for taxation, when. 

Where a county trustee possesses Jurisdiction of a proceeding for 
the reassessment or back assessment of property for taxation 
Instituted by a State revenue agent, and declines to take Juris- 
diction and erroneously refuses to hear such proceeding because 
of the alleged want of jurisdiction, a writ of mandamus will lie 
as the proper remedy to compel such county trustee to take jur- 
isdiction of the proceeding and to hear the same, and rend/»r 
some judgment on the merits. (Post, pp. 245-252.) 

Acts cited and construed: Acts 1903, ch. 258, sec. 38. 

Cases cited and approved: State, ex rel., v. Hunter, 3 Wash., 
92, and citations; Richardson v. Farrar, 88 Va., 760, 766-770; 
State, ex rel., v. Judge, 34 La. Ann., 1177; State, ex rel., r. 
Ellis, 41 La. Ann., 41. 



230 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., y. Taylor. 

8. SAME. Railroad commissioners are ex officio State tax as- 
sessors. 

The board of railroad commissioners created by Acts 1897» ch. 
10, became also a board of State tax assessors ex officio under 
a prior statute (Acts 1897, ch. 5, sec. 1) providing for a board 
of State tax assessors to be appointed by the governor, in case 
an act should not be passed at the same session of the leg. 
Islature creating a board of railroad commissioners, and, in 
case such act should be passed, then that the duties prescribed 
in said act contained in said chapter 5 should be devolved upon 
such railroad commissioners. {Post, pp. 252, 253.) 

Acts cited and construed: Acts 1897, ch. 5, sec. 1; ch. 10. 

4. STATUTES. Act not purporting to amend a former law need 
not recite its title or substance. 

The statute contained in Acts 1905, ch. 513, providing for the 
Just and equitable assessment of interurban railroad and street 
railroad property for State and municipal taxation, and for the 
collection of taxes assessed and imposed thereon, etc., is an 
independent act complete itself, and not purporting to be amen- 
datory of Acts, 1897, ch. 5. If the act is amendatory at all, it 
is only an implied amendment, und its failure to recite the title 
or substance of the said act of 1897 does not invalidate it. 
(Post, pp. 253, 254.) 

Acts cited and construed: Acts 1897, ch. 5; Acts 1905, ch. 513. 

Constitution cited and construed: Art. 2, sec. 17. 

Cases cited and approved: Poe v. State, 85 Tenn., 495; Itail- 
road V. Crider, 91 Tenn., 606, 507; State v. Yardley, 95 Tenn., 
558. 

5. SAME. Act for taxation of interurban and street railroads ex- 
tending beyond the city limits is not unconstitutional as class 
legislation, when. 

Acts 1905, ch. 513, providing for the just and equitable assess- 
ment of interurban railroad and street railroad property in a 
particular manner for State and municipal taxation, and for 
the collection of taxes assessed and imposed thereon, applies 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 231 

state, ex rel., v. Taylor. 

only to intenirban railroad lines and street railroad lines ex- 
tending beyond the boundaries of a single city, whether they 
run to any other city or not; and so construed is not uncon- 
stitutional as an improper classification of property for taxa- 
tion. iPoat, pp. 254-266.) 

Acts cited and construed: Acts 1897, ch. 5, sec. 7; Acts 1903, 258, 
sees. 22, 24; Acts 1905, ch. 513. 

Constitution cited and construed: Art 11, sec. 8. 

Cases cited and approved: Franklin Co. y. Railroad, 12 Lea, 
521, 634, 542. 

6. SAME. Subject in body covered by the title; case in Judgement. 
Acts 1905, ch. 513, entitled "An act to provide for the Ju^t and 

equitable assessment of interurban railroad and street railroad 
property for State and municipal taxation, and for the collection 
of taxes assessed and imposed thereon," and in section 3 de- 
claring that every person or corporation operating interurban 
and street railroad properties, including electric light and power 
properties, wheft owned and operated in conjunction with street 
railroad properties, shall file a specified schedule for taxation 
of the same under such act, does not introduce and embrace 
in its body a new subject not covered by the title, because the 
provision of said section applies to interurban railroad or 
street railroads owning and operating electric plants for the 
sale of surplus electricity generated for the operation of the 
railroad and not to separate electric light plants owned by 
railroads. (Post, pp. 242, 266-263.) 

Acts cited and construed: Acts 1903, ch. 268, sees. 22, 24; Acts 
1903, ch. 406, sec. 1; Acts 1906, ch. 613, sec. 3. 

Constitution cited and construed: Art 2, sec. 17; art 11, sec. 8. 

7. SAKB. A separable subject in the body not embraced in the 
title may be eliminated without impairing the rest of the act, 
when. 

A provision in the body of the act not embraced in its title will 
not invalidate the residue thereof, where such provi]]ion is 



232 TENNESSEE REPORTS. [119 Tenn. 

State, 6Z rel., y. Taylor. 

merely incidental and may be eliminated without impairing the 
integrity of the act {Post, pp. 266, 267, 260.) 

Acts cited and construed: Acts 1906, ch. 613, sees. 3, 18. 

Constitution cited and construed: Art 2, sec. 17. 

Cases cited and approved: State y. Wilson, 12 Lea, 246, 264; 
State, ex rel., y. Trewhitt, 113 Tenn., 661. 

8. BAMB. Provisionas to street railroads construed to apply to 
interurban railroads also, when. 
While section 18 of Acts 1906, ch. 618, speaks of street railroads 
only, yet it is clear that construing the whole act together it 
was intended by the legislature in this section to cover, not 
only street railroads, but Interurban railroads as well. {Post, 
p. 257.) 

0. MANDAMUS. Peremptory writ will issue upon the overruling 
of a demurrer, when there is no valid defense. 
Where, in a mandamus proceeding to compel a county trustee 
to hear and determine an application for the back assessment 
and reassessment of street railway property, the defendant's de- 
murrer was overruled on appeal, and It appeared that no valid 
defense could be made, a peremptory writ of mandamus will 
be awarded without leave to answer. {Post, pp. 268, 269, 264, 
276, 277.) 

10. TAXATION. Action of board of equalization is not final as 
against reassessment before county trustee, when. 
Under the assessment laws of 1901 and 1903, neither the action 
of the county board of equalizers nor that of the State board 
of equalization was final or conclusive, in the sense that it 
prevented a further back assessment or reassessment, for taxa- 
tion, of property inadequately assessed or entirely omitted ftrom 
assessment (Post, pp. 266-277.) 

Acts cited and construed: Acts 1901, ch. 174, sees. 33, 38; Acts 
1903, ch. 268, sees. 13-19, 21-26, 31, 33, 38, subsecs. 4, 10 11; 
Ac^ 1906, ch. 613. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 233 

* State, ez rel., v. Taylor. 



FROM SHELBY. 



Appeal from the Chancery Court of Shelby County.— 
F. H. Heiskbll^ Chancellor. 

Attobnby-Genebal Cates and Carroll & MgEel- 
LAR^ for complainant. 

James (X Bradford and E. E. Wright, for defend- 
ant. 



Mr. Justice Neil delivered the opinion of the Court 

The bill in this case was filed in the chancery court 
of Shelby county to obtain a ma/ndamus against the 
county trustee of Shelby county, in respect of an ap- 
plication made by relator before the latter, concerning 
a reassessment, or back assessment, of the property of 
the Memphis Street Railway Company. The chancellor 
awarded an alternative writ, which was served upon 
the defendant. The latter, instead of making a return 
to the writ directly, demurred to the bill, and this was 
treated in the court below as properly raising the ques- 
tions presented in the case, and will be accordingly so 
treated here, without passing upon the propriety of the 
practice adopted. The chancellor sustained the de- 



234 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., y. Taylor. * 

murrer and dismissed the bill, and from this decree the 
complainant has appealed to this conrt^ and has here 
assigned errors. 

Before stating the substance of the bill and demur- 
rer, we shall set out the sections of the statute that 
control the controversy, viz. : Section 31 and section 38, 
subsec. 11, chapter 258, pp. 660, 674, of the Acts of 
1903: 

"Sec. 31. That any property or properties included 
in this act shall be back, or re-assessed for the period 
now provided by law, viz. : 

"(1) When the same have been omitted from or 
escaped taxation. 

"(2) When the same has been willfully or know- 
ingly, or by the negligence of the tax assessor, or board 
of equalizers, assessed or computed at a value less than 
its actual cash value. 

''(3) When the same has been assessed by the as- 
sessor or computed by the board of equalizers at less 
than its actual cash value by reason of any fraud, 
deception, misrepresentation, or misstatement of the 
owner of the property or his agent or attorney. 

"(4) When the owner of the property connives at or 
fraudulently procures, or induces an assessment to be 
made by the assessor, or computed by the board of 
equalizers at less than its actual cash value. 

"(5) When the owner, or his agent, fails, refuses, 
or neglects to list the property to the assessor, as re- 
quired by law. 



U Gates] SPECIAL SEPTEMBER TERM, 1907. 235 
state, ex rel., y. Taylor. 

"(6) Whenever it is within his knowledge or he has 
reason to suspect in his county that any property has^ 
in violation of this act as above prescribed, been as- 
sessed by any assessor, or computed by any board of 
equalizers at less than its 'actual cash value, it shall 
become the duty of any revenue agent, or any district 
attorney, or any attorney of the county, of the judge or 
chairman of the county court, of the county court clerk, 
of any circuit, chancery, and criminal court clerk, of 
any sheriff, and of any citizen of the county, to cause 
or have the county court clerk, in the case of mer- 
chants' taxes, and the county trustee, in case of other 
taxes covered by this act, to have issued the citation 
hereinafter set out, for the purpose of back or re- 
assessing such property. At the request of or upon 
the information or motion of any citizen or taxpayer 
of the State, or of any of the officers above named, it 
shall be the duty of the county court clerk, in the case of 
merchants' taxes, and the county trustee, in the case of 
other taxes covered by this act, to issue, for the purpose 
of back or re-assessing property, the citation hereafter 
set out. The county Qourt clerk, in the case of mer- 
chants' taxes, and the county trustee, in the case of 
other taxes covered by this act, upon the motion or 
information, or at the request of any citizen or taxpayer 
of the State, or of any of the officials before designated, 
or when the same is within the knowledge of, or sus- 
pected by the county court clerk, or county trustee, 
shall issue as to any property assessed or valued in 



236 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., y. Taylor. 

violation of this act, at less than the actual cash value 
of the same^ a citation to be served by any officer of the 
county or of any district thereof, upon the owner of the 
property, or his agent, or representative, or attorney, 
summoning him to appear before such clerk or county 
trustee, at his office giving not less than five days' notice 
from the date of the issuance of the citation and show 
cause, if any, why said property should not be back 
or re-assessed at its actual cash value. The form of 
citation shall be substantially as follows, viz. : 

"State of Tennessee^ County. 

"To , at , Tenn.: 

"Proper motion having been made before me by 

, State revenue agent for the State of Tennessee 

under section , chapter , of the Acts of 

Tennessee, 190 — ^ you are hereby cited to appear be- 
fore me, , trustee or county court clerk for 

county, Tennessee, on the day of , 

190—, at — '■ — o^clock M., for the purpose of 

being assessed or re-assessed for the years upon 

omitted or inadequately assessed property in the said 
county and State, and show Q^use, if any, why said 
property should not be back or re-assessed at its actual 
cash value. 



"Trustee or county court clerk, 

" county, Tenn. 

"Issued at office this day of , 190—. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 237 
State, ex rel., v. Taylor. 

^^The officials herein named as having power to back 
OP re-assess property, are vested with full authority 
to administer oaths, send for and examine witnesses, 
and take such steps as may be deemed necessary or ma- 
terial to obtain information and evidence as to the 
value of the property. Said witnesses, when properly 
summoned, shall be amenable to existing laws for non- 
attendance or failure to give evidence which is in their 
knowledge. 

"Said officials herein vested with the power to back 
or re-assess property shall have full authority, in pro- 
ceedings, to back or re-assess such property, to make 
proper, correct, and adequate assessments of the same 
at its actual cash value, which, when entered upon the 
tax books or filed in writing with the authorized tax- 
collecting authority, shall become a final and valid as- 
sessment of the property, and collectible as such, aa 
fully and amply as if originally entered upon the as- 
sessment rolls. Should it appear that any property has 
been assessed at less than its actual cash value, in vio- 
lation or in disregard of the provisions of this act, 
the official back or re-assessing the same, shall add to 
the assessment a penalty of fifteen per centum upon 
the amount of the added tax, and the cost of the pro- 
ceeding, which said penalty and cost shall become a 
part of the taxes and collectible as such. If the pro- 
ceeding is determined in favor of the owner of the 
property, the cost shall be paid by the county. 

"It shall be the duty of the clerks of the county courts 



238 TENNESSEE REPORTS. [119 Tenn. 

State, ex rel., y. Taylor. 

to examine and compare the assessment rolls of the 
county with the inventories or reports of administrators 
and executors as soon as filed with the county court 
clerk, for the purpose of ascertaining whether any per- 
sonal property of any estate is subject under this act 
to back or re-assessment In case such examination 
shall show any personalty subject to such back or re- 
assessment, the clerk of the county court shall report 
the same to the county trustee, who shall back or re- 
assess the same, under the provisions of this act, and 
add thereto the penalty heretofore designated. 

**In case the county court clerk or county trustee 
shall fail or refuse to perform the duty herein imposed^ 
such clerk or trustee shall become liable, on his official 
bond for the amount of taxes which might have been 
recovered had said duty been properly performed, to- 
gether with a penalty of fifteen per cent, added thereto, 
said liability and penalty to be recovered in any court 
of record or before any justice of the peace at the in- 
stance of any district attorney or revenue agent of the 
State, or by suit, or by motion or five days^ notice in 
the chancery or circuit courts, or before any justice of 
the county.'' 

"Sec. 38. That the secretary of state, treasurer, and 
comptroller of the treasury of the State, and their suc- 
cessors in office, are hereby created a State board of 
equalization and invested with the powers and required 
to perform the duties hereinafter prescribed, viz.: 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 23'J 
state, ex rel., v. Taylor. 

"(11) Said board of equalization shall also hear ap- 
peals upon matters of back or re-assessments made 
by revenue agents or other officers oif the State from 
county trustees or county court clerks. The right of 
appeal from the decision of said trustees or county 
court clerks in the matter of back or re-assessments is 
hereby given to the State and county or party assessed 
or re-assessed; provided, said appeal is prosecuted 
within ten days from the date of such back or re-assess- 
ment or attempt to back or re-assess, and the said trustee 
or county court clerk shall, upon such appeal being 
perfected, certify his action to the State board of equali- 
zation, whose duty it shall be to hear the matter in 
controversy within ten days from the filing with them, 
or either of them, the notice of appeal, provided, said 
board is then in session." 

The bill alleges: That it came to the knowledge 
of relator "that, in violation of the provisions of the 
law, the property of the Memphis Street Railway Com- 
pany was assessed at less than its actual cash value, 
and glaringly and inadequately assessed for taxation." 
That for "the years 1902, 1903, 1904, 1905, the Mem- 
phis Street Railway Company did not comply with the 
provisions of law in regard to returning its property for 
taxation." "That on the 25th day of May, 1904, the 
Memphis Street Railway Company, by its vice-presi- 
dent, filed a schedule purporting to comply with the 
law, and therein set forth and stated, among other 
things, that the bonded debt of the company was |906,- 



240 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., v. Taylor. 

000 of the market value of about par. The quoted value 
on the above date was 113. That the stock of the 
corporation authorized was f 500,000, all of which was 
issued, and that it had no market value except for con* 
trol. A copy is annexed hereto as a part of this peti- 
tion. The relator has not been able to obtain the tax 
schedules for the years 1903 and 1902, but he avers to 
the court that the one last above referred to is mis- 
leading and erroneous in several particulars, but, upon 
the schedule so returned, misled thereby, the assessor, 
through negligence, fixed the actual cash value of the 
property of the Memphis Street Railway Company at 
fl,700,000, when, in truth, as relator is informed, be- 
lieves^ and from information avers, its actual cash 
value was then |7,500,000." "That during the years 
1902, 1903, 1904, instead of there being a little upwards 
of 1900,000 of bonds outstanding, there were upwards 
of 14,000,000, if not f 5,000,000, outstanding, with fixed 
charges thereon amounting to over |250,000 annually. 
The relator avers that under the seventh subsection of 
the law requiring a schedule there is provided that an 
itemized statement of all stocks and bonds, securities, 
notes, accounts, and choses in action owned or held, 
whether the same be unincumbered or transferred or 
deposited, or used as collateral, wherever the same may 
be situated, and also all money on hand or on deposit, 
wlierever the same may be situated, shall be set forth, 
and that, notwithstanding this statutory requirement^ 
the relator avers that at no time did the street railway 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 241 
. state, ex rel., v. Taylor. 

company comply therewith, and notwithstanding the 
fact that it had properties enumerated and called for 
in the aforesaid section. The relator further shows to 
the court that under the assessment laws of the State, 
the latest of which is to be found in the Acts of 1903, 
the Memphis Street Railway Company was subject to 
be assessed for taxation upon its properties, but there 
is no controversy that can arise but that under the 
assessment law of 1903, and the previous law of 1901, 
which is, in all respects material, similar to the one 
of 1903, it is subject to be assessed for taxation, and to 
be re-assessed or back assessed. 

"The relator further avers that for the years 1902, 
1903, 1904, 1905, the property of the Memphis Street 
Railway Company was grossly undervalued; that said 
undervaluation was due to the negligence of the ofllcers 
charged with the duty of assessing the same, and to 
the failure of the owner of the said property to comply 
with the statute; and thereby the said owner escaped 
its share of the public burden." 

In respect of the taxes for the year 1905, the following 
special additional allegations were made : 

"The relator is advised that it (the property of the 
street railway company) is also subject to be back as- 
sessed for taxation for the year 1905, under the assess- 
ment law of 1903, because he avers by advice of counsel 
that the special act passed on the 15th of April, 1905, 

being chapter 513, p. 1152, of the session acts of that 
119 Tenn— 16 



242 * TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., v. Taylor.. 

year, is violative of the provisions of the organic law, 
and particularly violative of that provision of the con- 
stitution, which ordains that no bill shall become a law 
which embraces more than one subject, that to be ex- 
pressed in the title. 

"Aforesaid chapter is an act to provide for the just 
and equitable assessment of interurban railroad and 
street railroad property for State and municipal taxa- 
tion, and for the collection of taxes assessed and im- 
posed thereon, but, by the third section thereof, there 
is included electric light and power properties, when 
owned and operated in conjunction with street railway 
property, which is a foreign subject, altogether to the 
title, and so interwoven with the other provisions of the 
act as to render the whole void. 

"And the relator is further advised that the said act 
is inoperative and void, because it is class legislation, 
in that it fails to fix as the assessable value of the 
property of interurban and street railroad companies 
the actual cash value of the same, thereby improperly 
classifying such property for taxation upon a different 
basis of value from that arbitrarily fixed and required 
upon all the other properties of the State subject to 
taxation. 

"The relator further shows that he is informed, be- 
lieves, and from information avers the fact to be that in 
the early part of 1905 the shareholders in the Memphis 
Street Railway Company sold the entire stock in that 
company to Mr. Newman and his associates at and for 



11 Gates] SPECIAL SEPTEMBER TEKM, 1907. 243 
state, ex rel., v. Taylor. 

a sum approximating |7,500,000, excepting from said 
sale certain real estate which was of the value of 
1200,000 or 1300,000; that the Memphis Street Railway 
Company was organized about the year 1895, and it 
acquired all the physical property, franchises, and 
shares of stock in the Citizens' Street Railway Com- 
pany, the Raleigh Springs Railway, the East End Rail- 
way, the Prospect Park and Dummy Line, which said 
shares of stock are embraced and enumerated in a mort- 
gage which it executed to secure the payment of |5,- 
000,000 of bonds bearing five per cent interest; that 
after the purchase of the said property by Mr. New- 
man and his associate, and to wit, on the 23d of August, 
1905, under the aforesaid unconstitutional act, the 
railroad commission assessed the property for taxation 
at 13,212,131.64, or upwards of f 4,000,000, less than 
the relator was informed, believes, and avers Mr. New- 
man and his associates paid for the said property. 

"The relator further shows to the court that very 
shortly after the purchase of the said property the 
capital stock of the corporation was increased from 
1500,000 to 15,000,000 being ?2,000,000 of preferred 
stock, and ^2,500,000 of common stock, and that on the 
21st of June of that year the preferred stock sold in 
the market at $90 per share, and the common stock for 
f 60 or |70 per share, the shares being f 100 each." 

Upon the subject of the relator's efforts to obtain 
from the county trustee a reassessment or back asst^ss- 



244 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., ▼. Taylor. 

ment of the property, the bill contains the following al- 
legations: 

That, when the above facts came to the relator^s 
knowledge, he ^'requested the defendant to issue a ci- 
tation provided for by law to the defendant company, 
summoning it to appear before him to show cause if 
any why its property should not be back or reassessed 
at its actual cash value. The aforesaid citation was 
duly issued and served, and the defendant street rail- 
way company duly appeared before the said defendant, 
who at its request, from time to time, x>ostponed the 
hearing, until Monday, the 16th day of July last, when, 
after hearing argument on the question, the defendant 
afifirmed that he could not take jurisdiction of the mat- 
ter, and declined to further proceed in accordance with 
the citation. In short, the defendant, being of opinion 
that he was without jurisdiction of the matter, refused 
to take it . . . The relator is advised that he is 
entitled to have the defendant perform the clear min- 
isterial duty pointed out by the statute, namely, pro- 
ceed to hear the complaint of the State of Tennessee, 
and to back assess, or reassei^, the properties of the 
Memphis Street Railway Company, to make proper, 
correct, and adequate assessment of the same at its 
actual cash value, and he is advised that the State of 
Tennessee has no other adequate remedy than through 
the mandate of this court" It is further alleged that 
the relator "sought, as it was his duty to seek, to set 
in motion the proceedings necessary, as provided by 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 245 
state, ex rel., v. Taylor. 

the State of Tennessee, in the exercise of its sovereignty, 
to avail itself of the remedy provided fop the illegal 
deficiency, and, although the statute plainly provided 
for the performance of a duty by the defendant to re- 
assess the aforesaid property, he declined to assume ju- 
risdiction so to do, leaving the State of Tennessee with- 
out any adequate remedy for the collection of the just 
burden of government upon the properties of the said 
Memphis Street Railway Company/' 

The demurrer filed to the bill has numerous subdi- 
visions, but may be stated adequately in two parts. The 
first part attacks the whole bill in so far as the latter 
undertakes to state a basis for any relief whatever 
against the defendant. The substance of this part of 
the demurrer is that the allegations of the bill, when 
rightly construed, mean, that the county trustee con- 
sidered the matters brought to his attention by the 
citation, and adjudicated them against the complain- 
ant : that upon such a state of facts the remedy of the 
State was an appeal to the State board of equalization, 
and that, therefore, the chancery court had no juris- 
diction to award the writ of mandamus; that an appli- 
cation for the latter relief cannot be successfully made 
when the party has any other adequate relief; that, if 
the party, at one time, had the right to such relief— 
that is by appeal to the State board of equalization— 
and lost it because of failure to apply in time, such 
party could not thereafter be properly granted a man- 
damus; that the decision of the county trustee was a 



246 TENNESSEE REPORTS, [119 Tenn. 

State, ex rel., v. Taylor. 

judgment, and the chancery court had no jurisdiction 
to review that judgment by or through the writ of 
mandamus, or in any other way, or to compel the county 
trustee to change his judgment in any manner what- 
ever; that such change could be effected only by an 
appeal taken and prosecuted in due time to the aforesaid 
State board. 

The second piart of the demurrer presents the point 
that the act of 1905 referred to in the bill is consti- 
tutional, and the assessment for that year was properly 
made thereunder. 

Before directly taking up for consideration the points 
in the demurrer, we deem it proper to say that we think 
the facts stated in the bill, which we have set out, make 
out a case for the jurisdiction of the county trustee to re- 
assess, or back assess, the property of the Memphis 
Street Railway Company, within subdivisions 2, 3, and 
5, of section 31, above set out, of chapter 258, p. 660, 661, 
of the Acts of 1903. 

It is perfectly true, as insisted by counsel for the 
defendant in support of the first part of the demurrer, 
that mandamus will not lie while there is any other 
adequate remedy. It is likewise true that by this writ 
the court can only compel a judicial ofllcer to take ac- 
tion on a matter within his jurisdiction, and cannot 
direct what judgment he shall render, but simply that 
lie shall discharge his functions and render a judgment 
in some form in respect of the matter before him. 

We are of the opinion that defendant's counsel er- 



11 Gates] SPECIAL SEPTEMBER TERM', 1907. 247 
state, ex rel., v. Taylor. 

ro'neously construed the allegations of the bill in re- 
spect of the nonaction of the county trustee. The sub- 
stance of those allegations is that he issued the citation 
required by law; that it was served upon the defend- 
ant therein named, the Memphis Street Railway Com- 
pany; that the latter came before the aforesaid officer, 
likewise the relator in behalf of the State; that the 
question of jurisdiction was argued ; that the aforesaid 
county trustee, after hearing this matter ai^ued, de- 
cided that he had no jurisdiction of the controversy, and 
refused to proceed further— that i^, that he refused to 
hear the case on its merits. 

Considering these allegations to be true, as the de- 
murrer necessarily does, a clear case for granting the 
writ of mandamus was made. It is erroneously argued 
by the defendant's counsel that an appeal from this 
action of the county trustee lay to the State board of 
equalization under subsection 11 of section 38 of chap- 
ter 258 of the Acts of 1903. Under that subsection, the 
appeal lies only from the decision of the county trustee, 
or county court clerk, as the case may be, on the merits. 
The county trustee and the State board of equalization 
have qtuisi judicial powers, but these are carefully 
limited by the statute. It is not for either of these 
bodies to refuse to take jurisdiction of the matter 
clearly placed within their powers by the statutes of 
the State. It is for the regular courts of the State to 
decide what that jurisdiction is when any question 
arises thereon, and to compel them to take jurisdiction, 



248 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., y. Taylor. 

by the writ of ma/ndamus, when they improperly refuse 
to take such jurisdiction, and to restrain them by cer- 
tiorari and supersedeas when they erroneously assume 
jurisdiction. 

Moreover, the great weight of authority supports 
the proposition that ^^mandamus lies to compel an in- 
ferior court to hear and determine a cause or matter 
properly triable before it, which the lower court fails 
or refuses to try on the ground that it has no jurisdic- 
tion, or that the judge is incompetent, or for other 
reasons." 19 Am. & Eng. Enc. of L. (2 Ed.), 827, and 
authorities cited. 

We shall now refer to a few of the authoritiea 

In State, ex rel. Shannon^ v. Hunter, 3 Wash., 92, 27 
Pac, 1076, it appeared that the return of the respondent 
to the alternative writ of mandamus showed that he had 
dismissed the suit in question for want of jurisdiction 
to hear it, because the amount sued for was less than 
f 100. The questions to be decided, and that were de- 
cided, arose upon this return. These questions were 
whether the court which refused jurisdiction had, in 
fact, jurisdiction where the sum sued for was less than 
f 100, and whether mandamus was the proper remedy 
where the cause was wrongfully dismissed, because in 
the opinion of the court it had no jurisdiction therein. 

After deciding the first question in the affirmative, 
the supreme court of Washington continued: 

"The superior court then erroneously dismissed the 
case, and the remaining question above suggested is 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 249 
state, ex rel., y. Taylor. 

as to the proper remedy. The position taken by th(? 
respondent is that such judgment of dismissal is the 
final judgment, and determines the cause as fully as 
would a judgment on the merits; that in rendering the 
same the court acts judicially and its discretion in so 
doing cannot be controlled by mandamus. There. is 
much force in this position ; and, if the question were a 
new one, unaffected by authority, we might come to 
the conclusion that the proper remedy in such a case 
was by appeal, not by mandamus, but the authorities 
seem to have established the other doctrine, and to 
have decided that from judgments of dismissal for want 
of jurisdiction no appeal will lie, but that the only rem- 
edy is by mandamus. This doctrine was established 
in the supreme court of the United States many years 
ago. In Ex parte Bradstreet, 7 Pet, 634, 8 L. Ed., 
810, the supreme court of the United States issued a 
mandamus to a United States district judge to reinstate 
a cause which he had dismissed for want of jurisdiction, 
and to proceed in the trial of the same. In Ew parte 
Parker, 120 U. S., 737, 7 Sup. Ct., 767, 30 L. Ed., 818, 
the same court by writ of mandamus directed the su- 
preme court of this territory to reinstate a cause which 
it had dismissed, because, in its judgment, it had no 
jurisdiction, and to proceed to hear the same upon its 
merits. The same doctrine was announced in 131 U. S., 
221, 9 Sup. Ot., 708, 33 L. Ed., 123, where, in the same 
manner, the court conmianded the supreme court of 
said territory to reinstate and hear a case^ although the 



250 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., v. Taylor. 

judges who had rendered the judgment of dismissal had 
gone out of ofllce, and an entirely new set of judges 
had been installed. In Harrington v. Holler, 111 U. S., 
796, 4 Sup. Ct., 697, 28 L. Ed., 602, the same court held 
directly that no appeal would lie upon a judgment of 
dismissal for want of jurisdiction rendered in the su- 
preme court of this territory, and that the remedy, if 
any, was by nuindmnus. It will be seen from the above 
that the supreme court of the United States has from 
an early date uniformly held to a different doctrine 
from that contended for by respondents. If we look at 
the decision of the courts of last resort in the States, 
we shall find them to be almost uniformly upon the 
same side of the question. We shall not attempt to re- 
view these latter cases, but the case of State, ex rel. 
Kcanc, v. Murphy, 19 Nev., 89, 6 Pac, 840, is the most 
interesting one upon this question. The learned judge 
of that court, in deciding said case, not only sustained 
the doctrine as above stated, but entered into a dis- 
cussion of the reasons therefor with such success that 
there seems little chance of escape therefrom. He says 
that the discretion of the lower court is not controlled 
by such a writ; that the question as to whether or not 
siich court has jurisdiction in the particular matter is 
a preliminary one'; that the appellate court in granting 
the writ decides that question for the lower court, and 
does not compel it to decide it^ at all, and at great 
length elaborates and ably maintains the position con- 
tended for by the petitioner in this proceeding. In view 



11 Cates] SPECIAL SEPTEMBER TERM, 1907. 251 
state, ex rel., v. Taylor. 

of these authorities, we feel bound to hold that the 
proper remedy, where a cause has been erroneously dis- 
missed for want of jurisdiction, is mandanvusJ^ 

To the same effect, see Richardson v. Farrar, 88 Va., 
760, 766-770, 15 S. E., Ill; State, ex rel Chism & Boyd, 
V. Judge, 34 La. Ann., 1177; State, ex rel. Daniel Cohen, 
V. T. C. W. Ellis, Judge, 41 La. Ann., 41, 6 South, 55. 

In State, ex rel. Daniel Cohen, v. T. C. W. Ellis, 
Judge, it is said: "Relatively to the question of our 
jurisdiction to allow the relief now sought, it suffices 
to say that it is a settled rule, expounded by this court, 
that a distinction is recognized between cases in which 
it is sought by mandamus to control the decision of the 
inferior court on the merits of the cause and cases in 
which it has refused to go into the merits of the action, 
upon some erroneous construction of some question of 
law or practice, preliminary to the whole case." 
- In High on Ex. Rem., section 151, it is said : * *A dis- 
tinction is recognized between cases where it is sought by 
mandam/us to control the decision of the inferior court, 
on the merits of the cause, and cases where it has refused 
to go into the merits of the action, upon an erroneous 
construction of some question of law or practice pre- 
liminary to the whole case." 

Our cases upon the subject of m^indamus are very 
numerous, but we have examined all of them, and find 
in none of them anything adverse to the rules laid down 
in the foregoing authorities. 



252 TENNESSEE REPORTS. [119 TeniL 

state, ex rel., v. Taylor. 

We should add, however, perhaps, by way of quali- 
fication, that probably where the point arises in one 
of the regular courts of the State on plea in abatement 
or motion raising a question of jurisdiction of the per- 
son or subject-matter, and there is a consequent dis- 
missal of the case, with a judgment for costs, and 
wherein, under the course of our practice, an appeal 
lies, to test the correctness of the action of the lower 
court, mandximus would not be applicable, so, in other 
cases, in the regular courts of the State, where there is 
a' dismissal of the action for want of jurisdiction, fol- 
lowed by a judgment for costs. But in the classes of 
cases just referred to there is a distinct judgment en- 
tered upon which an appeal may be prayed and prose^ 
cuted. 

For the reasons stated, we are of the opinion that 
the grounds of demurrer, covering the whole bill, were 
not well taken, and should have been overruled by the 
chancellor. 

We shall now consider the second division of the de- 
murrer, which raises the question of the constitution- 
ality of chapter 513, p. 1152, Acts 1905. 

It is first objected by the State that there are no such 
officers as the State tax assessors referred to in the 
first section of that act. 

This is a mistaken view. The first section of chapter 
5, p. 102, Acts 1897, referred to in the first section of 
the above-mentioned act of 1905, provides for a board 
of State tax assessors to be appointed by the governor, 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 253 
state, ex rel., ▼. Taylor. 

in case at the same session of the l^islature an act 
should not be passed creating a board of railroad com- 
missioners, and, in case such act should be passed, 
then that the duties prescribed in chapter 5 should be 
devolved upon such railroad commissioners. In chap- 
ter 10, p. 113, Acts 1897, the board of railroad com- 
missioners was created. Thereupon the members of 
that commission likewise obtained the title of State 
tax assessors, and the duties prescribed in chapter 6 
of the acts of 1897 were devolved upon them ex 
officio. 

It is insisted that the act of 1905 is but an amendment 
of the act of 1897, and, inasmuch as it does not recite 
the title or substance of the former act in its title or in 
its body, that it is unconstitutional, as in violation of 
the last clause of article 2 of section i7 of the State 
constitution. We think this is a mistaken view. The 
act does not purport to be, and is not, an amendatory 
act. It is an independent act, complete in itself. The 
officers referred to are simply given other duties, just 
as additional duties may be imposed by statute upon 
the sheriff, or coroner, or any other officer of the State 
created by the constitution or established by law. It 
could be considered at most, if an amendment at all, 
only as an implied amendment, and amendments of this 
character are not covered by the constitutional provis- 
ion referred to. Poe v. State, 85 Tenn., 495, 
3 S. W., 658; Railroad v. Crider, 91 Tenn., 506, 
507, 19 S. W., 618; State v. Yardley, 95 Tenn., 558, 



254 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., ▼. Taylor. 

82 S. W., 481, 34 L. R. A., 656; 1 Lewis' Sutherland, 
Statutory Construction, sec. 239. In the authority last 
cited it is said : 

"Where an act does not purport to be amendatory, 
but is enacted as original and independent legislation, 
and is complete in itself, it is not within the constitu- 
tional requirement as to amendments, though it may, 
by implication, modify or repeal prior acts, or part 
thereof. The constitution does not make the obviously 
impracticable requirement that every act shall recite 
all other acts that its operation may incidentally afiFect, 
either by way of repeal, modification, extension, or sup- 
ply. The harmony or repugnance of acts not passed with 
reference to the same subject can only be effectually 
developed by the clash of conflicting interests in litiga- 
tion, and the settlement of such questions belongs to 
the judicial, not the legislative, department.'' 

Th^ next point made by the State will be sufficiently 
disclosed by the following observations : 

If the said act of 1905 applies only to interurban 
lines and street railway companies whose lines extend 
beyond a single city, it is constitutional. If it applies 
to street railway lines confined to a single city and not 
extending beyond the boundaries thereof, it is uncon- 
stitutional, either in whole or in part, in accordance 
with its capability or incapability of subjection to a 
division of the subjects contained in it. It is perfectly 
clear that the method of taxation provided in the act 
is just and reasonable when applied to interurban lines. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 255 
state, ex rel., ▼. Taylor. 

Tke reasons supporting this method of assessment, as 
applying to railway lines, running through more than 
one county, are fully stated in Franklin County v. Radl- 
roady 12 Lea, 521, 534, 542, and need not be repeated 
here. The same reasons, we think, would apply to the 
property of a street railway company whose lines ex- 
tend beyond the limits of a single city, even though 
they do not run to any other city. The reason is that 
the city should not tax so much of the line as runs 
beyond its limits, but only the values lying within it. 
In order to reach a true result in such a case, it is 
necessary that the division into distributable and local- 
ized property be made, as provided in section 7 of the 
foregoing act of 1897. 

If we construe the act as applying to the lines of 
a street railway company confined to a single city, and 
not extending beyond the boundaries of such city, it 
would be unconstitutional, at least in part, since no 
good reason could be assigned for such a classification, 
or why street railway companies of this description 
should be subjected to a mode of taxation different 
from that applied to electric light companies and water 
companies, provisions concerning the assessment of 
which appear in sections 22, 24, c. 258, pp. 646, 651, 
Acts 1903. 

It is our duty to construe the act in such way as to 
hold it constitutional, if we can do so in accordance with 
sound reason. We are of the opinion that the present 
act can be m construed, and that it applies only to in- 



256 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., v. Taylor. 

terurban lines and street railway lines extending beyond 
the boundaries of a single city. This is apparent from 
sections 3 and 7. 

It is insisted that what is said in section 3 concerning 
electric light and power- properties introduces a new 
subject^ and makes the act void, as in violation of arti- 
cle 2, section 17, of the constitution, which provides that 
no bill shall become a law which embraces more than 
one subject, that subject to be expressed in the title. It 
is also said that this provision is in violation of article 
Jl, section S, of the constitution, because it makes an 
unreasonable classification in favor of electric light 
plants owned by street railway companies, as against 
independent electric light plants. The reason given for 
this objection is that independent plants must be taxed 
as set out in sections 22, 24, c. 258, pp. 646, 651, Acts 
1903, while under the present act an electric light plant 
owned by a street railway company whose lines extend 
beyond the city obtains the deduction in value which 
must necessarily arise from the division of the sum of 
valuation within the city by the whole mileage of the 
street railway company extending beyond the city, while 
no such deduction is possible under the provisions made 
for other electric light companies. We think the ob- 
jf^ction is valid, and that so much of this act as makes 
provisions for the assessment of electric light plants 
owned by street railway companies is unconstitutional. 
However, this does not make the whole act void, since 
this subject is easily separable from the body of the act, 



11 Gates] SPECIAL SEPTEMBER TEBM, 1907. 257 
state, ex rel., ▼. Taylor. 

leaving the residue unimpaired. State, ex reL, v. Trew- 
Mtt, 113 Tenn., 561, 82 S. W., 480. 

The same is true of so much of the last section as re- 
fers to the back assessment of railroads^ telephones, and 
telegraph companies tii^ the last clause of section 18) 
objected to by counsel for the complainant. These sub- 
jects are wholly foreign to the title of the act, but may 
be elided without impairing the integrity thereof. We 
can have no doubt that the legislature would have pass- 
ed the act with both of the objectionable features re- 
ferred to left out. State, ex rel., v. Trewhitt, supra; 
mate V. Wilson, 12 Lea, 246, 254. 

A criticism is made upon the act to the effect that 
section 18 speaks only of street railroads. However, 
it is clear that construing the whole act together it was 
intended by the l^islature in this section to cover, not 
only street railroads, but interurban railroads as well. 

There are other criticisms of the act made by counsel 
which we have carefully considered and found not well 
made, but do not deem them of sufficient importance to 
merit a more particular reference here. 

It does not appear from the allegations of the bill 
whether the lines of the Memphis Street Railway Com- 
pany extend beyond the limits of the city of Memphis 
or not ; and so it does not appear from the bill whether 
the lines of the company referred to fall within the act 
which we have above held constitutional or not. We 

119 Tenn— 17 



258 TENNESSEE REPORTS. [119 Tenn. 

State, ex rel., v. Taylor. 

cannot presume that the officers of the State acted il- 
legally. 

It follows that the contention of the State, with re- 
spect to the year 1905, must be disallowed. 

However, as to the years 1902, 1903, and 1904, the 
complainant is entitled to relief for the reasons already 
given. 

The next and last question is whether the court shall 
permit a return to the alternative writ, or whether a 
peremptory writ shall be ordered to issue at once. 

In Merrill on Mandamus, after stating the older and 
harsher practice, the author continues : 

"The custom now is, if the demurrer to or the motion 
to quash the alternative writ is overruled, to allow the 
respondent to put in a return. This is not conceded 
to be a matter of right, but is considered proper when 
justice requires that the respondent should be allowed 
to answer. Sometimes the court has required the re- 
spondent to submit to it his proposed answer, or to show 
the merits of his defense by an affidavit, or has received 
the oral statements of his counsel in lieu of an affidavit. 
In such cases, if the court considered the proposed de- 
fenses to be without merit, or that they had already been 
passed on in the decision of the demurrer, or motion to 
quash, the respondent was not allowed to make a return 
and a peremptory writ was ordered.'* 

No suggestion has been made that the bill stated in- 
correctly the facts in respect of the county trustee's 
refusal to take jurisdiction of the controversy. The 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 259 

state, ex rel., v. Taylor. 

cause will be remanded to the chancellor, with directions 
to issue at once a peremptory writ, directing the county 
trustee to take jurisdiction of the controversy, and pro- 
ceed to hear it in respect of the taxes of 1902, 1903, and 
1904. 
The costs of this cause will be paid by the defendant 

On RBHBARy^G. 

This case was before us on a former day of the term, 
and is now before us again on petition to rehear, and to 
modify our former opinion, in so far as it refers to sec- 
tion 3, c. 513, p. 1153, Acts 1905, in relation to the elec- 
tric-lighting business of street railway companiea It 
is said that the Memphis Street Railway Company, whose 
property is under consideration in the present case, is 
engaged in no such lighting business, hence that the 
question does not arise here and should not be disposed 
of in the opinion ; and that what was said in the former 
opinion will unnecessarily and unjustly affect the busi- 
ness of other companies that are not before the court, 
and that have no opportunity to be heard. Further- 
more, it is said that the business of electric lighting, in 
respect of those street railway companies that are so 
engaged, is so intermingled with their street railway 
operations that they cannot be separated for the pur- 
poses of assessment, so as to reach any just result, either 
to the State or to the companies so engaged. 

It is, of course, a matter to be regretted that the de- 
cision of a case as a result of the enunciation of the 



260 TENNESSEE REPORTS. [119 Teon. 

state, ex reL, y. Taylor. 

principles upon which it is based, always affects, indi- 
rectly at least, the rights of people not before the court ; 
but this is a necessary infirmity, or incident at least, of 
all judicial proceedings which the wisdom of man has 
never been able to cure or change. We do not agree 
with counsel that it is unnecessary in the present case 
to consider the provisions of section 3, c. 513, p. 1153, 
Acts 1905, so far as they relate to electric lighting. It 
is necessary to pass upon that part of it which refers 
to electric lighting, because the attorneys for the com- 
plainant have challenged that particular feature of the 
act as introducing a new subject, And making the whole 
act void as in violation of article 2, section 17, of the 
constitution, and also as in violation of article 11, sec- 
tion 8, of that instrument. In the former opinion the 
conclusion was reached that the provision referred to 
constituted a separate subject, but might be elided, as 
merely incidental, under the rule as laid down in State, 
ex rel, v. Trewhitt, 113 Tenn., 561, 82 S. W., 480, and 
fitate V. Wilson, 12 Lea, 246, 254, and other cases, leav- 
ing the residue of the act to stand. I am still of that 
opinion, but the majority of the court have reached a 
different conclusion on the following grounds, in which 
I concede that there is great force. 

The statute under which street railway companies, 
and interurban companies are authorized to engage in 
the business of electric lighting, is chapter 406, p. 1150, 
Acts 1903. The first section of that act reads as follows : 

"Section 1. Be it enacted by the general assembly of 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 261 
state, ex rel., ▼. Taylor. 

the State of TenneBsee, that sections 6 and 18 of the act 
entitled ^An act to provide for the organization of cor- 
porations/ approved, March 23, 1875, being chapter 142 
of the acts of 1875, be so amended that railroads and 
railway companies constructing, owning, and operating 
with electricity interurban railroads and street railroad 
companies, shall have and be invested with the following 
additional rights and powers to wit: To manufacture, 
generate and distribute electric light, electric heat and 
electric power for the purpose of supplying themselves 
and others; to construct, equip and own factories, plants, 
machinery and all appliances for the manufacture, gen- 
eration and distribution of electric light, power and heat; 
to acquire, by purchase, lease, or other lawful contract, 
electric plants, factories, machinery and all appliances 
for the manufacture, generation and distribution of 
electric light, power and heat; to acquire by purchase, 
lease or other lawful contract, electric plants, factories, 
machinery, equipments, and appliances, and rights, ease- 
ments, licenses and franchises, necessary or convenient 
to manufacture, generate, distribute and sell electric 
light, power and heat ; to supply and sell to others elec- 
tric light, power and heat; to acquire by purchase, lease 
or other lawful contract, water power, riparian and 
wat^r rights together with all such licenses and fran- 
chises, easements, and privileges attached to, necessary 
or convenient to operate and use the same; and to have 
?ind possess all such other powers as shall be necessary 



262 TENNESSEE BEPOBTS. [119 Tenn. 

state, ex rel., y. Taylor. 

to execute and perform the powers herembefore grant- 
ed/' 

Section 3, c. 513, p. 1153, Acta 1905, reads as fol- 
lows: 

"Sec. 3. Be it further enacted that every person, or 
corporation, owning, leasing, or operating interurban 
and street railroad properties, including electric light 
and power properties when owned or operated in con- 
junction with street railroad properties shall file with 
the comptroller of the State biennially on or before the 
first day of April, commencing with 1905, a schedule or 
schedules stating and giving the following facts and 
information, viz: A list or statement of all of his or 
its property, real, personal, and mixed, owned or leased, 
setting forth therein the length in miles of the entire 
roadbed, switches, and side tracks showing the number 
of miles in each county, and the number of miles in each 
city, or incorporated town, the value of the whole, the 
amount of capital stock controlled by the corporation, 
the bonded debt, the gross annual receipts of the preced- 
ing fiscal year, the number of cars, their classes and 
value, the location, description, and value of all car 
sheds, transfer stations, power houses, and other real es- 
tate, and all real, personal, and mixed property belong- 
ing to the person or company owning said railroad, if a 
part of, and used in connection therewith, together with 
its value." 

Upon further consideration of the matter, and con- 
struing the foregoing section in connection with section 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 263 
state, ez rel., v. Taylor. 

1 of the above-mentioned chapter 406 of the Acts of 
1903, the majority of the court are of opinion that the 
language upon the subject of electric lighting appear- 
ing in the forgoing section of the Acts of 1905, viz., "in- 
cluding electric light and power properiies when owned 
or operated in conjunction with street railroad proper- 
ties,^' applies only to the case of electric lighting op- 
erations arising solely from the running of an electric 
railway plant as a railway, and to the sale of its sur- 
plus electricity so generated, and does not cover the case 
of a street railway company, or interurban company, 
owning and operating a separate electric light plant, 
or a plant run under chapter 406 of the Acts of 1903 
for the purpose of conducting the business of electric 
lighting; and, in this view, that the provisions of section 
3, c. 513, p. 1153, Acts 1905, ujwn the subject of electric 
lighting, do not constitute a separate subject in violation 
of article 2, section 17, of the constitution, and that so 
construed, the aforesaid section 3 of Acts of 1905 is not 
in violation of article 11, section 8, of the constitution. 
What would be the result in the case of a distinct plant 
owned or leased and operated by an electric railway com- 
pany, and not an integral part of its railway business, 
the court thinks does not arise in the present case, and 
need not be considered. 

On MoiiON TO Modify Obdbb. 

After the original opinion was handed down in this 
case on the 20th of June, an application was made by de- 



264 TENNESSEE BEPORTS. [119 Tenn. 

state, ex reL, v. Taylor. 

f endant'B counsd for a modification of the order directed 
in the last paragraph upon the subject of the issuance 
of a peremptory mandarmis, so as to permit the filing of 
an answer upon the remand to the chancery court. This 
was opposed by counsel for complainant, and the court 
finally settled the particular controversy thus arising 
by entering an order granting to the defendant ten days 
from the adjournment of the court within which to file 
an affidavit setting forth the defense which he desired 
to incorporate in the answer which he proposed to file. 
This course, sanctioned by the authority cited in the 
original opinion, was adopted with the view, on the one 
hand, of avoiding the possibility of shutting off a just 
defense, and, on the other, of guarding against unneces- 
sary delay in the hearing of the controversy which the 
court had held it was the duty of the county trustee to 
take jurisdiction of and to hear. 

Within the ten days granted the defendant filed his 
affidavit, stating his grounds as follows : 

^^That at the time the matter of the assessment of said 
street railway was taken up before him, as a quasi judi- 
cial officer, affiant was informed and ascertained as a 
fact during his investigation into the facts of said back 
assessment for the years 1902, 1903, and 1904 that the 
Memphis Street Railway Company had been regularly 
assessed by the assessor of Shelby county, that said as- 
sessment had been reviewed by the county board of as- 
sessors for Shelby county, and that an appeal had been 



11 CJates] SPECIAL SEPTEMBER TERM, WOT. 265 
State, ex. reL, t. Taylor. 

taken from the said county board to the State board of 
equalization^ and that said appeal had been acted upon^ 
and that an assessment had been finally made on said 
street railway company by said State board under said 
appeal. This affiant, then acting *as a qiuiai judge and 
construing the law and the acts of the l^islature as best 
he could, deemed himself bound by the assessment of 
said State board for said years. He thereupon ruled 
that the assessment made by the State board was a 
finality, and that he acting in said quasi judicial man- 
ner was bound thereby, and that he was without jurisdic- 
tion to' proceed further in the matter of said assess- 
ment. 

''Under citation served on the Memphis Street Rail- 
way Company, the following facts among others were 
disclosed during the examination for the respective 
years: 

^'1902. For the year 1902 the Manphis Street Rail- 
way Company appealed from the assessment of the as- 
sessor to the county board of equalization, and the coun- 
ty board of equalizers assessed the corporate property 
of the Memphis Street Railway Company at and for the 
sum of 1980,000. From this assessment the State of 
Tennessee and the county of Shelby appealed to the State 
board of equalization, and this board assessed said prop- 
erty at and for the sum of fl,700,000. Affiant further 
found as a fact that the State board of equalization did 
during September, 1902, certify this fact to the county 
clerk of Shelby county, Tennessee. 



266 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., v. Taylor. , 

I. — ' 

"1903-04. The county assessor, in the years tt03-04, 
following the action of the State board of equalization 
for the year 1902, assessed the property of the Memphis 
Street Railway Company for each of these years at and 
for the sum of |l,700j000. The county board of equali- 
zers reviewed the assessment for the year 1903, and also 
for the year 1904, and approved these assessments for 
both years. The State board of equalizers for both of 
these years approved the finding of the county board of 
equalization, and placed the assessment for each year at 
the- sum of |1,700,000. 

"Affiant further found that the assessment acts of 
1901 and 1903, in section 33 of each act, provided as fol- 
lows: *When the county board of equalizers shall have 
determined the matters of equalization and value before 
it^ and within its jurisdiction, such action shall be final 
except in so far as the same may be reviewed or changed 
by the State board of equalization.' Also under Acts 
1901, p. 346, section 38, subsec. 10, this language is used : 
^The action of the State board of equalizers shall be 
final and conclusive as to all matters passed upon by 
the board, and taxes shall be collected ui>on the values 
so fixed and found by said board.' The same identical 
language is used in Acts 1903, p. 674, c. 258, section 
38, subsec. 10. This condition of facts, together with 
the law which your affiant presumed to be applicable to 
his action in the premises, constrained affiant to hold 
that the assessment of the State board of equalization 
was final, and that affiant was without jurisdiction, and 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 267 

state, ex rel., r. Taylor. 

had no anthority to make the afisessment against said 
properties as requested." 

There are other averments in the affidavit, covering 
the year 1905 ; but, as the controversy in respect of that 
year has been eliminated, we need not farther refer to 
this portion of the affidavit. 

The defense sought to be interposed as to the assess- 
ment for the years 1902, 1903, and 1904 is^ in short, that, 
inasmuch as the State board of equalization had acted 
upon the assessments for each of these years^ and subsec- 
tion 10, above quoted, declares that the action of that 
board shall be ^^final and conclusive," there can be no 
back assessment, or reassessment, under section 31 quo- 
ted in the original opinion. 

We shall now examine this position. 

In order to properly determine the matter, we shall 
have to construe sections 31 and 38 of the said chapter 
258 of the Acts of. 1903; and, in doing so, we shall at 
the same time construe the act of 1901 referred to, since 
they are in respect of this matter the same. 

In the original opinion section 31 is set out in full. 
By reference to that section, it will be seen that beyond 
doubt five cases are stated (subsections 1 to 5, inclusive) 
in which back assessments may be made. It is unneces- 
sary to consider whether an additional ground is given 
in subsection 6. It is perceived that in three of the five 
instances (subsections 2, 3, 4) a case is supposed in 
which the board of equalization has already acted. So 
that, if subsection 10 of section 38, quoted in the affi- 



268 TENNESSEE EEPORTS. [119 Tenn. 

state, ex rel., y. Taylor. 

davit, 11843 a nniyersal application— that is, admits of 
no exception to the generality of its language — sec- 
tions 31 and 38 are directly in conflict. But the dictate 
of common sense, as well as the letter of the law, is that 
the several parts of an act must be considered together,, 
and so construed as to accomplish harmony between 
them, if that can be done. 

In the original opinion we quoted subsection 11 of 
section 38. Turning to the language there quoted, it 
will be observed that the duty is devolved upon the 
State board of equalization to hear appeals upon mat- 
ters of back or reassessmeni made by revenue agents or 
other officers of the State from county trustees or coun- 
ty court clerks; that the right of appeal from the de- 
cision of the county trustees, or county court clerk, as 
the case may be, in back assessment cases heard by 
them, or either of them, is given to the State, the county, 
and also to the taxpayer or citizen whose property has 
been reassessed, and that it is made the duty of the State 
board to hear the matter in controversy. This subsec- 
tion 11 immediately follows subsection 10 quoted in de- 
fendant's affidavit. Beading these two subsections of 
section 38 together, there can be no sort of doubt that, 
whatever may be the scope of subsection 10 in respect 
of the finality or conclusiveness of the action of the 
State board, it cannot extend so far as to exclude cases 
of back assessment or reassessment authorized by other 
parts of the act, but as to such matters they are to be 
treated as exceptions to the rule of finality expressed in 



11 Gates] SPECIAL SEPTEMBER TEBM, 1907. 269 
state, ex reL, r. Taylor. 

subsection 10. Indeed^ so careful was the general as- 
sembly to make sure the right and power of back assess- 
ment or reassessment in the special cases provided for, 
that it was declared in subsection 5 of section 38 that 
the State board during its 'biennial session, ^'or at any 
other time," ^^shall have the power to send any of its 
members to any portion of the State to obtain informa- 
tion and evidence deemed material, and to hear ques- 
tions upon appeal from the action of trustees and county 
court clerks." The subsection continues: "In cases 
of back assessments and re-assessments, to the duties 
.of equalization, said board, whenever deemed material, 
may hold at any time, sessions at said capitol or else- 
where for the transaction of business, other than that 
to be performed during the biennial sessions, which ses- 
sions may be held either before or after said biennial ses- 
sions,'* etc. The lawmaking body. returns to the sub- 
ject again in section 39, wherein it is declared that the 
assessments provided for in section 31 (that is, back as- 
sessments) shall not be made for any year other than 
"for the year in which said assessments shall be made, 
4ind for three years preceding same." So, if there is 
■anything in the act wholly outside the field of doubt and 
speculation, it is that it was the purpose of the legisla- 
ture to provide for back assessments in proper cases; 
but there never could be a back assessment if the action 
of the State board were final, in the sense suggested in 
defendant's affidavit, on the ground that it had passed 
^pon and settled the original assessment, either under 



270 TENNESSEE REPORTS. [119 Tenn. 

State, ex rel., v. Taylor. 

it& general operation as a board of equalization or on 
the exception of some taxpayer to the action of the coun- 
ty board; since the State board in one or the other of 
these methods passes upon all original assessments. The 
act provides (section 33) that all assessments shall go 
before the county board of equalizers. Prom this board 
they are passed on to the State board. Chapter 258, at 
pages 666, 667, 670, Acts 1903. The functions of the 
county board are triplicate — ^the primary one to equal- 
ize the assessments over the whole county; a secondary^ 
or at least an additional, one, to hear complaints of in- 
dividual taxpayers, either that the property of other 
taxpayers or of some other taxpayer is assessed lower 
than his own, or that his property is assessed too high, 
or the board may of its own motion raise or lower any 
assessment so as to place the property at its actual cash 
value. Acts 1903, pp. 665, 666. But the county board 
cannot raise any particular assessment until the prop- 
erty owner or owners aflfected by the increase shall have 
been notified and given an opportunity to be heard. Id., 
p. 665. When the county board of equalizers shall have 
determined ^^the matters of equalization and values, be- 
fore them, and within their jurisdiction," such action, 
the statute provides, '^shall be final, except in so far as 
the same may be revised or changed by the State board 
of equalization." Id., p. 667. The functions of the 
State board are in the main substantially the same as 
those of the county board, modified by the fact that the 
scope of its operations is wider, and that it does not ^i- 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 271 
state, ex rel., t. Taylor. 

tertain original complaints of individual taxpayers ex- 
cept in the one instance below mentioned. The primary 
duty of the State board is to equalize the assessments in 
the several counties over the whole State, so as to make 
them conform to the standard of the actual cash value 
of the properties involved; in performing which duty 
equalization may be made by classification of properties 
by wards, civil districts or counties, or in such manner 
as may be deemed best to enable the board to justly and 
equitably equalize assessments in conformity with the 
standard of actual cash value. Id., p. 673. This is the 
main work of the biennial session. Pages 672, 673. But 
at this session the board may hear the original complaint 
of an individual taxpayer that other property than his 
own has been assessed at less than its actual cash value; 
and, as incidental to its power to re-examine, or review 
the work of the county board, it may re-examine com- 
plaints of this character made in that board, as well as 
the action of that board upon the complaints of indi- 
vidual taxpayers as to the valuation of their property. 
This power is found in the general duty of equalization 
(section 38, passim) y and also in that portion of section 
33 which provides that the matters of equalization and 
values before the county board, and within its jurisdic- 
tion shall be final, ^'except in so far as the same may be 
levised or changed by the State board of equalization." 
Page 667. Another important function of the State 
board is to hear appeals from the decisions of county 
trustees and county court clerks in the matter of back 



272 TENNESSEE REPOETS. [119 Tenn. 

state, ex rel., t. Taylor. 

assessments. Section 38, subsec. 11; also, subsection 5, 
pp. 673, 676. NoWy going back and stating in outline 
the process of assessment from the beginning to its com- 
pletiouy we have, first, the assessments made by the 
county and district assessors. Sections 13 to 18; sec- 
tions 21 to 26. Then follow in regular order the duty 
of the assessors to turn over their assessm^it lists and 
books to the county court clerk (section 19), the require- 
ment that the county court clerk shall turn over to the 
county board of equalization the assessment lists or 
rolls at its first day's session for its consideration (sec- 
tion 33, p. 665), the provision that the county board of 
equalization shall upon the completion of its labors 
deposit its records and papers, together with the assess- 
ment lists with the clerk of the county court for pre- 
servation (Id.), and shall furnish a summary of its 
work together with a tabulated statement of certain 
data, to the State board of equd.lization (pages 666, 668, 
670), then the performance by the latter of its duties 
in the valuation and equalization of property, as above 
mentioned (section 38, passim) j and finally the certifi- 
cation by that board to the several county court clerks, 
showing corrections and changes in assessments^ and the 
increases and decreases in the value of property, and the 
duty of the county court clerks to make proper and 
correct entries of these matters upon the tax books, to 
be turned over to the county trustee (page 674). Thus, 
it is perceived, all of the assessments come before the 
State board in regular course. Such changes as they 



11 Gates] SPECIAL SEPTEMBER TEBM, 1907. 273 
state, ex rel., t. Taylor. 

make in indiyidual assessments they make in the course 
of the regular routine. No appeal is provided from 
the county board to the State board. None is needed. 
Objections made in the county board can be followed into 
the State board, and there renewed under forms and 
methods the latter may prescribe pursuant to subsec- 
tion 4 of section 38. Prom all this, it is clear there is 
no trial in the sense of a litigation between contending 
suitors, but merely the means and methods provided for 
an administrative branch of the public service to enable 
it to reach a correct result in the as^tesment of prop- 
erty. No notice to the taxpayer is required, but he must 
take notice from the statute itself of the biennial ses- 
sion. Page 672. But, when the machinery is put in 
motion to back assess the property of a citizen, a mark- 
ed change is noted. He must be served with a personal 
citation to appear before the county trustee (or county 
court clerk, as the case may be) and show cause, if any 
he has, "why said property should not be back assessed 
or reassessed at its actual cash value." Page 662. Un- 
der this citation a regular trial is had before the county 
trustee (or before the county court clerk, in the case of 
merchants' taxes), as a result of which he is to render 
a decision, fixing the rights of the partis, from which 
an appeal may be prayed and prosecuted by either party 
to the State board of equalization (subsection 11 of 

119 Tenn— 18 



274 TENNESSEE REPORTS. [119 Tenn. 

State, ex rel., ▼. Taylor. 

section 38, p. 674), ^*whose duty it shall be to hear the 
matter in controversy." lb. Now, it is clear that sub- 
section 10 of section 38, viz., "The action of the State 
board of equalizers shall be final and conclusive as to 
all matters passed upon by the board, and taxes shall 
be collected upon the valuations so fixed and found by 
said board,'' has quite a different meaning from that 
suggested in the affidavit. It means, indeed, that these 
valuations are not to be interfered with or changed by 
any other tribunal or court. It does not mean that the 
power of the State board is limited thereby; that is, 
it does not mean that when the State board shall have 
acted upon the valuations in the course of its ordinary 
routine in reviewing the work of the county board, 
that it (the State board) shall thereby cut itself off 
from a re-cxamination of particular assessments under 
proceedings instituted for procuring back assessments. 
To so hold would be to nullify every provision in the 
act upon the subject of back assessments. It is indeed 
' true that the legislature intended to declare in sub- 
section 10, supra, that whenever the State board had 
finally passed upon the assessments, und^r all of the 
powers conferred upon it, whether through its routine 
work of equalization at its biennial session, or subse- 
quent proceedings for back assessment, this should be 
an end of the matter. 

The learned counsel for defendant do not go so far in 
their brief as the defendant goes in his affidavit. In 
the brief it is said : 



11 Gates] SPECIAL SEPTEMBEB TEBM, 1907. 275 
state, ex rel., y. Taylor. 

^'Now, we earnestly submit that subsection 10 is a 
general provision, and as aforesaid applies absolutelj 
and unequivocally to all matters that have been passed 
upon by the State board of equalization. However, sec- 
tion 31 is a special provision applying only to the enum- 
erated class of cases mentioned therein, and therefore in 
our opinion a proper construction of these two sections 
taken together is that all matters concerning the valua- 
tion of properties when passed upon by the State board 
of equalization are final, except in those cases which 
are mentioned in section 31, .and which are exceptions 
to the general rule of finality.'^ 

This construction is assented to in the reply brief of 
complainant's counsel. 

It is perceived that it is the same in substance as that 
reached by the court upon an extended review and 
comparison of all of the provisions of the statute appli- 
cable. 

So, the court and the counsel upon both sides are at 
one on the* proposition that proceedings for back as- 
sessments falling within the provisions of section 31 are 
in nowise precluded by the provisions of subsection 10 
of section 38, but may be instituted and carried to a 
conclusion under section 31 and subsection 11 of sec- 
tion 38. 

This would seem to end the controversy by a genial 
accord. Counsel for defendant, however, insist that 
the case before us does not fall within the several 
grounds for back assessment, or any of them, set forth 



27« TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., y. Taylor. 

in section 31. But counsel are precluded from making 
this point by the language of the original opinion in 
this cause. In that opinion we said : 

"Before directly taking up for consideration the 
points in the demurrer, we deem it proper to say that 
we think the facts stated in the billy which we have 
set outy make out a case for the jurisdiction of the 
county trustee to reassess or back assess the property 
of the Memphis Street Railway Company, within sub- 
divisions 2, 3, and 5 of section 31, above set out, of 
chapter 258 of the Acts of 1903." 

That determination cannot be reopened after the 
close of the term, nor could it be at any time made in 
the form of the present application. Besides, we are 
content with it as it stands, believing it to be perfectly 
sound and just. 

In view of the construction given to the act, and our 
holding that the controversy as set forth in the bill 
falls within the provisions of section 31, no other con- 
clusion is possible than that a proper case was stated 
for the jurisdiction of the county trustee; that the 
affidavit fails to show any reason why he should not 
take jurisdiction and proceed with the hearing of the 
case; in short, that it appears the defendant has no 
valid defense to offer against the issuance of the per- 
emptory w^rit of mandamus, and the same order must 
be made upon this subject which was directed to be 
made near the close of the original opinion. 

There is nothing in the numerous authorities cited 



11 Gates] SPECIAL SEPTEMBER TERM', 1907. 277 
state, ex rel., v. Taylor. 

in defendant's brief that gainsays the conclusion we 
have reached. The whole matter turns upon the con- 
strnetion of our statute. 

The question is argued in the brief of defendant's 
counsel whether subsection 6 of section 31 of the act 
merely provides the means by which relief is to be 
had under the several grounds set out in subsection 1 
to 5, inclusive, or whether, in addition, it contains a 
sixth ground, viz., the mere fact that the property was 
not originally assessed at its actual cash value. The 
defendant's counsel insist that the former is the correct 
view, and that the latter is wholly inadmissible. The 
complainant's counsel insist that the case presented by 
the bill is one of an undervaluation so gross aa to 
place the subject-matter in the category of omitted 
property. We deem a consideration of these questions 
out of place here, since, as already stated, it was held 
in the original opinion that the bill made out a case 
under subsections 2, 3, and 5, of section 31 of chapter 
258 of the Acts of 1903, and the affidavit filed by de- 
fendant under permission given at the last term shows 
no reason why he should not take jurisdiction and pro- 
ceed to the discharge of his duty in the hearing and 
determination of the cause brought before him. 

Let the order as above indicated be made for a re- 
mand to the chancellor with the direction to issue a 
peremptory mandamus. 

The defendant will pay the costs of this proceeding. 



278 TENNESSEE REPORTS. [119 Team. 

Railroad r. Byrne. 

Memphis Stbebt Railway Company v. William Q. 

Bybne. 

{Jackson. Special September Term, 1907.) 

L OOVSTITUTIOHAL ULW. Ptoviaioa as to the ononoM of fh* 
•abject to be ezpresaed in the title la mandatory. 
The constitutional proyision (art 2, see. 17) that ''no bill shall 
become a law which embraces more than one subject, that sub- 
ject to be expressed in the title," is mandat<M*7. (Post, pp. 
286, 287.) 

Case cited and approved: Cannon ▼. Mathes, 8 Heisk., 619. 

2. 8AMB. Object of provision as to the oneness of the subject to 
be expressed in the title; liberal construction. 
The object of the constitutional requirement (art 2, sec. 17) as 
to the oneness of the subject to be expressed in the title of 
each bill is to give notice of the nature of the proposed legis- 
lation and to prevent surprise and fraud in the enactment of 
laws, and to prevent improper and unlawful combinations be- 
tween the members of the general assembly, resulting in the 
passing of statutes having no natural connection. However, 
this provision is to be liberally construed so as not to unne- 
cessarily embarrass legislation. {PoBt, pp. 287, 288.) 
Cases cited and approved: Cannon v. Mathes, 8 Heisk., 519; 
Luehrman v. Taxing District, 2 Lea, 428; Morrell v. Fickle, 3 
Lea, 81; Truss v. SUte, 13 Lea, 312; Frazier v. Railroad, 88 
Tenn., 158. 

8. SAKB. A "general title" of an act defined. 
A "general title" to an act is one which is broad and compre- 
hensive, and covers all legislation germane to the general sub- 
ject stated. The title may cover more than the body, but it 
must not cover less. It need not index the details of the act 
nor give a synopsis tbereof. {Post, pp, 288-291.) 
Cases cited and approved: Cannon v. Mathes, 8 Heisk., 519; 
State V. Tardley, 95 Tenn., 555; State, ex rel., v. Brewing Co., 
104 Tenn., 718. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 279 

Railroad ▼. Byrne. 

4. SAMB. A<*xMtrietiTatltta"ofa]iactdafl]iad. 
A "restrlcttTe title** to an act is one where a parUenlar part 
or branch of a subject is carved out and 'selected as the sub. 
jeot of the legislation, and under such a title, the body of the 
act must be confined to the iiartlcular subject expressed in the 
limited tiUe. {Pogt, pp. 289-291.) 

Cases cited and approved: Hyman v. State, 87 Tenn., 109, 112» 
113; State v. Bradt, 103 Tenn., 591; State, ez rel., v. Brewing 
Co., 104 Tenn., 718. 

K. BAKB. Bttles as to the oneness of the subject to be expressed 
in the title apply to amendatory statutes. 
The rules as to the oneness of the subject of legislation to be 
expressed in the title apply to amendatory statutes. Such a 
statute incorporates itself with the original law, and the two 
become one statute, as fully and completely as if enacted at 
one time in one bill, and the matter of the amendment must 
not only be germane to the body of the original act, in order 
to avoid violating the one subject mandate of the constitution, 
but, in the absence of an enlargement of the title of the latter 
act, it must come within the titl\d of the original statute and 
be germane to the subject there expressed, in order to comply 
with the other mandate that the subject be expressed in the 
. title. If it be otherwise in either particular, it is void. (Post, 
p. 291.) 

Cases cited and approved: Hjrman v. State, 87 Tenn., 109; Qood- 
bar V. Memphis, 113 Tenn., 23. 

6. SAMS. Bule favoring the construction to sustain the statute 
applies to the title. 
The rule of construction that every intendment and presumption 
is in favor of the constitutionality of a statute, and that every 
doubt must be solved so as to sustain it, and where it is sub- 
ject to two constructions, that which will sustain its consti- 
tutionality must be adopted, is applicable in the interpretation 
of titles. (Post, pp, 291, 292.) 



280 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Byrae. 

Gases cited and approved: Manufacturing Co. t. Falls, 90 Tenn.» 
466; State, ex rel., v. Brewing Co., 104 Tenn., 718. 

7. STATUTBB. Preamble considered in ascertaining the Intention 
of the legislature. 

The preamble of a statute, while not a part of It and not con^ 
trolling, may be considered In connection with the condition of 
public afFalrs, contemporary history, and other statutes in re. 
latlon to the same subject-matter, in ascertaining and determin- 
ing the Intention of the legislature. (Post, p, 297.) 

Acts cited and construed: Acts 1895, ch. 76. 

Case cited and approved: McElwee ▼. McElwee, 97 Tenn., 658. 

8. SAME. Amendment of statute creating court of chancery ap- 
peals so as to create the court of civil appeals. 

Acts 1895, ch. 76, creating the court of chancery appeals and 
defining Its jurisdiction, and Acts 1907, ch. 82, amending the for> 
mer act so as to change the name of the court to that of the 
court of ciyil appeals and to increase its jurisdiction, relate to 
but a single subject, are germane, and the latter act is a prop- 
er amendment of the former. Both acts have but one general 
object or purpose, one single subject, however multitudinous may 
be the means or instrumentalities provided for efFectlng that 
purpose. (Post, pp. 292-300, and especially 299, 300.) 

Acts cited and construed: Acts 1895, ch. 76; Acts 1907, ch. 82. 

Cases cited and approved: Cannon v. Mathes, 8 Heisk., 604; 
Morrell v. Fickle, 3 Lea, 79; Frazler v. Railroad, 88 Tenn., 157; 
State V. Brown, 103 Tenn., 449; State v. Hamby, 114 Tenn., 364. 

9. SAMB. Object and purpose of an act is the same as the subject 
thereof. 

The object and purpose of an act, as a general thing, is the sub- 
ject of it, in the sense of the mandate of the constitution (art. 
2, sec. 17), as to the subject of legislative bills. {PiOt, p. 
800.) 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 281 
Railroad v. Byrne. 

10. SAMB. Same. Subject of act creating court of chancery ap- 
peals cohere subject of the amendatory act creating the court 
of civil appeals. 

The subject expressed In the title of Acts 1895, ch. 76, creatingr 
the court of chancery appeals, is sufficiently broad and com- 
prehensive to cover the common object and purpose of itself 
and of Acts 1907, ch. 82, amending the former so as to create 
the court of civil appeals. {Post, pp, 800-310.) 

Acts cited and construed: Acts 1895, ch. 76; Acts 1907, ch. 82. 

Cases cited and approved: Cannon v. Mathes, 8 Heisk., 504, 619; 
Morrell v. ^ckle, 3 Lea, 79; Jackson v. Nimmo, 3 Lea, 597; 
Truss V. State, 13 Lea, 312; Ryan v. Terminal Co., 102 Tenn., 
127; State v. Brown, 103 Tenn., 449. 

11. SAHE. Name or style of a court does not limit or confine its 
object or Jurisdiction. 

The name or style of a court does not limit the object of the 
court or the jurisdiction to be conferred upon it There is a 
broad distinction between the purpose to create a court and the 
Jurisdiction to be conferred upon that court, and the two must 
not be confused. (Post, pp. 301, 311.) 

Case cited and approved: Jackson v. Nimmo, 3 Lea, 597. 

Id. SAME. Acts 1907, ch. 82, amending Acts 1896, ch. 76, does 
not depend upon title of original act, but upon its own title. 
The validity of Acts 1907, ch. 82, amending Acts 1896, ch. 76, 
which created the court of chancery appeals, by increasing the 
Bise and Jurisdiction of such court and changing its name, does 
not depend upon the scope of the title of the original act, but 
upon its own title. {Post, p, 307.) 

18. SAKE. Bestrictive title of original act may be amended and 
enlarged by title of amendatory act. 
While a general title covering one entire subject cannot be en- 
larged by an amendatory act so as to include another subject 
or additional matter, because thereby two subjects would be 
introduced in the body of the act, nevertheless, a restrictive 



282 TENNESSEE EEPOBTS. [119 Tenn. 

Railroad v. Byrne. 

title may be enlarged by the title of an amendatory aet, ao as to 
allow leglBlation germane to the body of the original act If 
the title of the original act oonld hare been broad enough to 
cover the matter* of the amendm^it, the title of the amendatory 
act may so amend it, on the principle that whateyer could 
haye been done originally can be done by amendment {Pott, 
pp. 807^10.) 

Cases cited and approved: Hyman y. State, 87 Tenn., 109; State 
y. Algood, 87 Tenn., 163; Goodbar v. Memphis, 113 Tenn., 85; 
Galloway y. Memphis, 116 Tenn., 747. 

14. SAKB. Amendment contained in Acts 1907, eh. 89, as to 
court of chancery appeals is properly expressed in its title. 
The subject of the amendment contained in Acts 1907, ch., 82, 
amending Acts 1895, ch. 76, which created the court of chan- 
cery appeals, so as to increase the number of Judges of the 
court, to change its name, and to increase its Jurisdiction, and 
further limit the Jurisdiction of the supreme court, was prop- 
erly expressed in the title of the amendatory act iFoMt^ p. 
310.) 

16. 8AKB. Acts 1907, ch. 89, is amendatory as to court of ehan* 
eery appeals, and does not create a new court. 
While Acts 1907v ch. 82, changes the name of the court of 
chancery appeals, increases its Judicial force, increases its 
Jurisdiction and powers, and provides for their exercise in a 
manner which that court could not exercise under the act 
creating it, still said act is not an independent and complete 
scheme of legislation, and does not establish a new court 
{Post, pp. 311-315.) 

16. SAME. Implied repeals are not favored. 

Acts 1907, ch. 82, is amendatory as to court of chancery appeals, 
created by Acts 1895, ch. 76, and is not in irreconcilable con- 
flict with the said prior act, and does not repeal it by implica- 
tion. (Po9t, pp. 314-317.) 



U Gates] SPECIAL SEPTEMBER TEBM, 1907. 283 

Rallroftd r. Byrne. 

Cases cited and approved: Frazier r. Railroad, 88 Tenn., 163; 
Fisher v. Baldrldge, 91 Tenn., 418; Blanfltid r. State, 108 TeuL. 
693; McCampbell ▼. State, 116 Tenn., 107. 

Case cited and distinguished: Malone t. Williams, 118 Tenn.» 
890. 

17. SUPBBIKB OOUBT. Jurisdiction and powers under the oon« 
stitntion. 

The supreme court, established and vested with its Jurisdiction 
and powers by the constitution, not to be interfered with by 
the other branches of the government, is the highest Judicial 
tribunal in the State. Its adjudications are final and conclu- 
sive upon all questions determined by it, save those reserved 
to the supreme court of the United States for review by it 
iP09t, p. 320.) 

Cases cited and approved: Miller v. Coulee^ 6 Sneed, 432; Dodds 
V. Duncan, 12 Lea, 731; State v. Oannaway, 16 Lea, 124. 

18. 8AMX. Same. Jurisdiction is appellate only with power to 
enforce that Jurisdiction. 

The Jurisdiction of the supreme court is appellate only, with 
the power to enforce that Jurisdiction. {Post, p. '320.) 

Constitution cited and construed: Art 6, sec. 2. 

Cases cited and approved: State v. Bank, 6 Sneed, 673; Memphis 
V. Halsey, 12 Heisk., 213; State v. Gannaway, 16 Lea, 124. 

19. SAXB. Supreme court's ultimate revisory power cannot be 
uniQpasonably interfered with. 

The legislature may, by the establishment of courts of interme- 
diate appellate Jurisdiction, or other appropriate legislation, 
limit and restrict the right of litigants to resort to the supreme 
court of the State, and regulate the mode of doing so, but not 
so as to interfere unreasonably with, or to embarrass, its ulti- 
mate revisory powers; and It is always for the supreme court 
to decide when its constitutional Jurisdiction is encroached 
upon. iPo8t, pp. 320, 321.) 



284 TENNESSEE BEPORTS- [119 Tenn. 

Railroad v. Byrne. 

Cases cited and approyed: Miller ▼. Conlee, 6 Sneed, 432; State 
y. Bank, 5 Sneed, 673; Ward y. Thomas, 2 Cold., 666; Newman 
y. Soott Co., 1 Heisk., 787; tlundhausen y. Insurance Co., 6 
Heisk., 704; Chestnut y. McBride, 6 Bax., 96; McElweer y. Mo- 
Blwee^ 97 Tenn., 667; Chattanooga y. Keith, 116 Tenn., 689. 

20. OOTTBT OF CIVIL APPBALS. Appellate Jurisdiction defined. 
The primary appellate Jurisdiction of the court of ciyil appeals 

embraces all cases brought up from courtK of equity and chan- 
cery courts, inyolying not more than one thousand dollars, and 
all cases brought up from the circuit and common law courts, 
except cases inyolying constitutional questions, election con- 
tests, and State reyenue and ejectment suits. (Post, pp. 317- 
333.) 
Acts died and construed: Acts 1907, ch. 82, sec. 7. 

21. 8AMB. Same. Appellate Juzisdiction in snpreme court in case 
inyolying constitutionality of statute creating court of dyil ap- 
peals. 

When the constitutionality of the statute creating the court 
of ciyil appeals is inyolyed in an appeal that would otherwise 
lie to that court, the appeal may be taken directly to the su- 
preme court, and it may there be tried and finally determined. 
(P09t, pp. 317, 318, 334-339.) 



FROM SHELBY. 



Appeal in error from the Circuit Oourt of Shelby 
County.— A. B. Pittman, Judge. 

J. C. Bradford and E. E. Wright^ for Bailroad. 
Bell^ Terry, Anderso(n & Bell, for Byrne. 



11 Gates] SPECIAL SEPTEMBEB TERM, 1907. 285 
Railroad ▼. Byrne. 

Mb. Justicb Shields deliyered the opinion of the 
Conrt. 

This is an action brought by William G, Byrne 
against the Memphis Street Railway Company in the 
circuit court of Shelby county to recover damages for 
the alleged wrongful action of the defendant in refusing 
to transport him upon one of its cars. 

The right of the plaintiff to recover depends upon 
the constitutionality of a statute of Tennessee, which 
is assailed by the defendant. The case was tried March 
30, 1907, and there was a verdict and judgment in 
favor of the plaintiff for |50, and the defendant prayed 
and was granted an appeal in the nature of a writ 
of error to this court. The case is now before the court 
upon a motion, joined in by both parties, to have it 
docketed and here tried and determined. 

The question now presented is one of jurisdiction. 
The trial and judgment in the circuit court were had 
after chapter 82 of the Acts of 1907, amending chapter 
76 of the Acts of 1895, creating the court of chancery 
appeals, was enacted and approved. By that statute 
the name of that court was changed to the "court of 
civil appeals," the number of its judges increased to 
five, and its jurisdiction extended, among other things, 
to the review of civil cases tried in the circuit and 
common-law courts of the State. The parties, however, 
insist that they have a right to a trial in this court upon 
direct proceedings in error, without resort primarily 
to the court of civil appeals. We will proceed to dis- 



286 TENNESSEE REPORTS. [119 Tenn. 

BAilroad ▼. Byrne. 

poee of the grounds opoQ which this right is asserted. 
The first contention is that the act purporting to 
amend that establishing the court of chancery appeals^ 
now the court of civil appeals, and extending its ju- 
risdictiouy is unconstitutional and void, because it vio- 
lates article 2, section 17, of the constitution of the 
State, providing that '^no bill shall become a law which 
embraces more than one subject, that subject to be ex- 
pressed in the title." 

While counsel for plaintiff and defendant agree in 
this contention, we must determine it upon its merits^ 
.since statutes which are constitutional and valid 
cannot be disregarded, nor jurisdiction conferred by 
consent. 
I The precise objection to the act is that the subject 

I is not expressed in the title. It is twofold, and may 

be stated as follows: 

(1) That the title to the original act (chapter 76 
of the Acts of 1895) is restrictive and confines the 
subject there expressed to the establishment of a court 
for the review of causes appealed from the chancery 
courts of the State; and, therefore, the provisions of the 
amendatory act, extending the jurisdiction of that 
court to the review of cases brought from circuit and 
common-law courts, are not germane, but foreign, to it 

(2) That the subject expressed in the title of chap- 
ter 82, Acts 1907, is the amendment of chapter 76 of 
the Acts of 1895, creating the court of chancery appeals, 
while the body of it is a new and complete scheme of 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 287 
Railroad Y. Byrne. 

legislation, establishing a new and distinctly different 
conrt, with entirely different jurisdiction and powers; 
that instead of amending the former act, by implication 
it repeals it. 

If either of these contentions is sound, the act is 
void, and must be so held. The particular part of the 
provision of the constitution here invoked, that no bill 
shall become a law which embraces more than one sub- 
ject, that subject to be expressed in the title, is man- 
datory, and all legislation, to be valid, must comply with 
it. This was held by this court in the first case in which 
this provision came before it for construction, and has 
been adhered to in all subsequent cases. Cannon v. 
Mathes, 8 Heisk., 519. The object of the provision re- 
quiring the subject to be ^expressed in the title is that 
members of the general assembly and the public may 
have notice of the nature of the proposed legislation 
and surprise and fraud in the enactment of laws pre- 
vented; and that of the further provision, that the bill 
shall embrace but one subject, to prevent improper 
and unlawful combinations between the members of the 
general assembly, resulting in the passing of statutes 
which have no natural connection and would in sep- 
arate bills fail of enactment. It is liberally construed^ 
in order that the general assembly may not be unnec- 
essarily embarrassed in the exercise of its legislative 
powers and functions, and whatever is sufficient to 
effect its object will be held to be a compliance with 
this mandate of the organic law, and the legislation in 



288 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Byrne. 

^ this respect valid. Cannon v. Mathes, supra; Marrell 
V, Fickle, 3 Lea, 81; Truss v. State, 13 Lea, 312; Luehr- 
man v. Taxing District, 2 Lea, 428; Frazier v. Raihoay 
Co., 88 Tenn., 158, 12 S. W., 537. 

Titles to statutes may be general or restrictive, or, in 
other words, broad or narrow, since the legislature in 
every case has the right to determine for itself how 
comprehensive shall be the object of a statute, and it 
also has a wide discretion in the particularity of the 
title selected to express it, provided that, by a fair con- 
struction, such title complies with the constitutional 
provision in question. 

A general title is one which is broad and comprehen- 
sive, and covers all legislation germane to the general 
subject stated. It is not an objection that it covers 
more than the subject of the body of the act, but it must 
not cover less. It is not necessary that it index the 
details of the act, nor give a synopsis of the means 
^ by which the object of the statute is to be accomplished. 
All matters which are germane to the subject may be 
eml)raced in one act. The scope of a general title is 
•defined in one case in these words : 

"The true rule of construction, as fully established 
by the authorities, is that any provision of the act 
directly or indirectly relating to the subject expressed 
in the title, and having a natural connection therewith, 
and not foreign thereto, should be hdd to be embraced 
in it." Cannon v. Mathes, supra. 

And in another it is said: "Where the title of a 



11 CSates] SPECIAL SEPTEMBER TEEM, 1907. 289 
Railroad v. Byrne. 

l^islative act expressed a general subject op purpose 
which is single, all matters which are naturally and 
reasonably connected with it, and all measures which 
will or may facilitate the accomplishment of the pur- 
pose so stated, are properly included in the act and 
are germane to its title." State v. Tardley, 95 Tenn., 
555, 32 S. W., 481, 34 L. B. A., 656. 

A restrictive title is one where a particular part or 
branch of a subject is carved out and selected as the 
subject of the legislation. When this is done, notwith- 
standing a general title could have been adopted, which 
would have covered the entire subject, and authorized 
legislation upon the whole of it, the body of the act 
must be confined to the particular portion of it ex- 
pressed in the limited title. 

The case of Hyman v. State, 87 Tenn., 112, 9 S. W., 
372, 1 L. K. A., 497, is the leading case in the State 
upon this question. There this is quoted with approval 
from Cooley on Constitutional Limitations : 

"The legislature may make the title to an act as 
restrictive as they please. It is obvious that they may 
sometimes so frame it as to preclude many matters being 
included in the act which might with entire propriety 
have been embraced in one enactment with the matters 
indicated by the title, but which must now be excluded 
because the bill has been made unnecessarily restrict- 
ive. The courts cannot enlarge the scope of the title; 
they are vested with no dispensing power; the con- 
ns Tenn— 19 



290 TENNESSEE REPORTS, [119 Tenn. 

Railroad v. Byrne. 

stitution has made the title the conclusive index to 
the legislative intent as to what shall have operation; 
it is no answer to say that the title might have been 
more comprehensive, if in fact the legislature have not 
seen fit to make it so." 

And in State v. Bradt, 103 Tenn., 591, 53 S. W., 
944, it is said : 

"It is well settled that an act may be limited to a 
particular part or branch of a general subject by a 
restrictive title, and that legislation under such a title, 
to be good, must be confined within the limitations pre- 
scribed." 

The law in relation to general and restrictive titles 
is well expressed by Mr. Justice Caldwell in State, ex 
rel, V. Schlitz Brewing Co., 104 Tenn., 715, 728, 729, 
59 S. W., 1033, 78 Am. St. Rep., 941. He says: 

"The title of a legislative bill may be either narrow 
and restricted, or broad and general, as the members 
of the general assembly may prefer, and, whether it 
be in the one form or the other in a given instance, 
all legislation that is germane to the subject as express- 
ed in the title is within the title and permissible under 
it; but, of course, much that might be germane under 
the latter class of titles could not be so under the 
former. 

"If the title adopted be narrow and restricted, carv- 
ing out for treatment only a part of a general subject, 
the legislation under it must be confined within the 
same limits {State v. Bradt, 103 Tenn., 584, 53 S. W., 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 291 

Railroad v. Byrne. 

942; Hi/man v. State, 87 Tenn., 109, 113, 9 S. W., 372, 
1 L. R. A., 497; Cooley, Const. Lim. [5th ed.], 179) ; and 
if it be broad and general, the legislation under it 
may have a like scope. 

"In every instance the enactment must come within 
the title, but in no case is it required to cover the whole 
domain within the title. The constitution forbids that 
an enactment shall go beyond the limits of its title, but 
there is no requirement that it shall completely fill it. 
Om statute books afford numerous instances of some- 
what meager enactments under ample titles, and there 
are perhaps but few of those with broad and general 
titles that would not admit of some additional provis- 
ion." 

These rules apply to amendatory statutes. Such a 1 
statute incorporates itself with the original law, and 
the two become one act, as fully and completely as if 
enacted at one time in otie bill, and the matter of the 
amendment must not only be germane to the body of the 
original act, in order to avoid violating the one-subject 
mandate of the constitution, but, in the absence of an 
enlargement of the title of the latter act, it must come 
within the title of the original statute and be germane 
to the subject there expressed, in order to comply with 
the other mandate that the subject be expressed in 
the title. If it be otherwise in either particular, it is/ 
void. Hi/man v. State, supra ; Ooodbar v. Memphis, 113 
Tenn., 23, 81 S. W., 1061. 

The familiar canon of construction, that where the 



292 TBXXE8SEE REPORTS. [119 Tenn. 

BailrcMd r. Byrne. 

constitotionality of a statute is called in question, everj 
intendment and presumption is in its favor, and every 
doubt must be solved so as to sustain it, and where 
it is subject to two constructions^ that which will sufik 
tain its constitutionality must be adopted, is applicable 
in the interpretation of titles. Cole Manuf act tiring Co. 
V. Falls, 90 Tenn., 466, 16 S. W., 1045; State, ex rel, v. 
Schlitz Brewing Co., 104 Tenn., 718, 59 a W., 1033, 78 
Am. St. Rep., 941. 

We will now apply these general principles and r^aj^ 
to the legislation here assailed, and determine whether 
or not it is subject to the objections urged against it. 
This will require a somewhat lengthy statement of the 
titles and bodies of the act creating the court of chan- 
cery appeals and the one purporting to be an amend- 
ment of it. 

The title of chapter 76 of the Acts of 1895 is in these 
words: 

"An act to establish a court of chancery appeals; to 
define its jurisdiction and powers; to regulate the ap- 
pointment and election and fix the salaries of the 
judges thereof; to prescribe the duties and fix the com- 
pensation of the clerks and marshals thereof; and to 
limit the jurisdiction of the supreme court in regard 
thereto." 

The first section enacts that "a court of chancery 
appeals be and the same is hereby established, to be 
composed of three judges learned in the law." The re- 
mainder of this and sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 2ft3 
Railroad v. Byrne. 

and 13 relate to the qualifications, salary, appointment, 
and election of judges of the court, the filling of vacan- 
cies in this ofRce, the rules of practice in the court, and 
provide for clerks and marshals and their compensa- 
tion, and fix the regular sessions of the court, and au- 
thorize special sessions. 

Section 11 relates to the jurisdiction of the court, and 
is as follows: 

"Sec, 11. Be it further enacted, that the jurisdiction 
of said court of chancery appeals shall be appellate 
only, and shall extend to all such equity causes (except 
those involving State revenue) now and hereafter pend- 
ing in the supreme court as may be assigned to its 
dockets, and provided in section 14 of this act ; the find- 
ings of fact of said court of chancery appeals shall, in 
all cases, be reduced to writing, and be conclusive, and 
the jurisdiction of the supreme court shall not extend 
thereto; but from the decision of said court of chancery 
appeals, upon questions of law, appeals in the nature of 
writs of error, or writs of error, may be taken to the 
supreme court without additional security within thirty 
days, the former by the entry of a prayer therefor on 
the minutes of said court, and the latter by having the 
transcript filed in the supreme court and giving notice 
to the opposite party or his solicitor of record, and such 
appeals in the nature of writs of error or writs of error 
shall be tried in the supreme court upon the same tran- 
scripts, together with said written findings of fact. Said 
court of chancery appeals shall render judgment or de- 



294 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Byrne. 

cree in all causes assigned to it, upon which, unless re- 
moved to the supreme court as herein prescribed, final 
process may issue returnable as in case of like process 
issued upon the judgments or decrees of the supreme 
court." 

Section 12 makes it a court of record, and provides 
that its judgments and decrees shall be a lien upon 
the debtor's land from the time the same shall be ren- 
dered to the same extent as are the judgments and 
decrees of other courts of record in this State. 

The title of the amendatory statute, chapter 82 of 
of the Acts of 1907, is as follows : 

"An act to amend chapter 76 of the Acts of the gen- 
eral assembly of Tennessee, entitled *An act to estab- 
lish a court of chancery appeals; to define its jurisdic- 
tion and powers ; to regulate the appointment and elec- 
tion and fix the salaries of the judges thereof; to pre- 
scribe the duties and fix the compensation of the clerks 
and marshals thereof; and to limit the jurisdiction of 
the supreme court in regard thereto,' passed April 24, 
1895, and approved April 29, 1895, so as to increase 
the number of judges of said court of chancery appeals, 
to change its name, to increase its jurisdiction, and to 
further limit the jurisdiction of the supreme court, and 
to repeal all laws or parts of laws in conflict with this 
act." 

By sections 1, 2, 3, and 4, the number of judges of 
the court of chancery appeals is increased to five and 



11 Cates] SPECIAL SEPTEMBER TERM, 1907. 295 
Railroad ▼. Byrne. 

provision made for the appointment and election of the 
two additional judges. 

Section 5 prescribes when and where the sessions of 
the court shall be held. 

Section 6 changes the name of the court to that of the 
court of civil appeals. 

Section 7 confers further jurisdiction upon the court, 
and is in these words: 

"Sec. 7. Be it further enacted, that the jurisdiction 
of said court of civil appeals shall be appellate only, 
and shall extend to all cases brought up from courts of 
equity or chancery courts, except cases in which the 
amount involved, exclusive of costs, exceeds one thous- 
and dollars, and except cases involving the constitu- 
tionality of the statutes of Tennessee, contested elec- 
tions for office. State revenue, and ejectment suits, and 
to all civil cases tried in the circuit and common-law 
courts of the State, in which appeals in the. nature of 
writs of error, or writs of error, may be applied for, 
for the purpose of having the action of the said trial 
courts reviewed. In all cases in which appellate juris- 
diction is herein conferred upon said court of civil 
appeals, the appeals and appeals in the nature of writs 
of error from the lower court shall be taken directly 
to said court of civil appeals; and said court or any 
judge thereof is hereby given the same power to award 
and issue writs of error, certiorari and supersedeas, 
which the supreme court haa heretofore had in such 
caseSy returnable to said court of civil appeals. The 



296 TENNESSEE REPORTS. [119 Tenn. 

Railroad r. Byrne. 

practice in such cases in said court shall be the same 
as is now prescribed by law for the supreme court. In 
all cases in which appellate jurisdiction is not conferred 
by the terms of this act upon said court of civil ap- 
peals^ appeals therefrom shall be direct to the supreme 
court, and in such cases writs of elror, certiorari and 
supersedeas shall be issued by and made returnable to 
the supreme court, as is now provided by law; and in 
such cases the supreme court shall have exclusive ju- 
risdiction, and shall try and finally determine the same, 
and shall not, after this act takes eflfect, assign the 
same for trial by said court of civil appeals." 

Section 8 provides for the review of the judgments 
and decrees of the court by the supreme court by cer- 
tiorari; that being the only mode in which it can be 
done. 

Section 9 relates to cases in which appeals were per- 
fected from chancery courts before the act became ef- 
fective. 

Section 10 enacts that "except as amended by this 
act chapter 76 of the Acts of 1895 shall remain in full 
force." 

We do not understand it to be insisted that these 
statutes relate to distinct and separate subjects, and 
that when the latter is considered as incorporated in 
the body of the first two subjects are embraced. Such 
a contention could not be sustained. We think it clear 
that the subject of the enacting parts of both acts is tTie 
establishment of a court of intermediate appellate ju- 



11 Gates] SPECIAL SEPTEMBER TERM', 1907. 207 
Railroad v. Byrne. 

risdiction, to relieve the coogested dockets of this court, 
and thus make effective the constitutional mandate 
that courts shall be open and justice administered with- 
out delay. This is their single and common puri)08e. 
It was the sole reason for their enactment That it was 
the object of the first distinctly appears from its pro- 
amble, which, while not a part of the statute and not 
controlling, may be looked to and considered in ascer- 
taining the intention of the general assembly, alon>r 
with other statutes enacted in relation to the same 
subject-matter, as well as the then condition of pub- 
lic affairs and contemporary history. 

And it was so held by this court in the case of Mc- 
Elwee V. McElwee, 97 Tenn., 658, 37 S. W., 562, in 
sustaining the constitutionality of that act It is there 
said: 

"As this is the first occasion upon which the consti- 
tutionality of this act has been called in question, we 
deem it proper to enter somewhat into the history of 
its passage and the creation of the court of chancery 
appeals, and the reason and occasion for its establish- 
ment. Since the constitution of 1870, and, indeed, be- 
fore that time, the dockets of the supreme court had 
been overburdened with appeals, until it became im- 
possible to properly dispose of them. Various expedi- 
ents were resorted to to give the relief desired, and to 
afford to litigants the prompt hearing which they were 
entitled to under the constitution and bill of rights. In- 
termediate courts have from time to time been created 



298 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Byrne. 

and vested with power more or less extensive— such as 
the commission court, the court of referees, the arbi- 
tration court— and, under the constitution of 1870, the 
number of judges of this court was temporarily in- 
creased to six, so as to enable it to sit in two sections. 
These were, however, at best, but temporary expedients, 
and, while the courts thus created did much labor and 
accomplished a great deal towards effecting speedy 
trials of causes appealed, still, being only temporary 
atid limited as to time, and to some extent as to power, 
they could not accomplish all that was desired, even 
though they may have exceeded popular expectations. 
But all these courts have passed away, and live only in 
the history of the State's jurisprudence. The volume 
of litigation has not, however, decreased. There are 
nearly fifty inferior courts of circuit, criminal, chan- 
cery, and special jurisdiction, from which appeals lie 
to this court, besides the different county courts in 
the various counties of the State, from which, in many 
casft, appeals lie direct to this court. The consequence 
is that the task of disposing of the causes upon the dock- 
ets of the supreme court was more than could be ac- 
complished by that court, although more than 1,200 
cases per annum were disposed of. There . is a 
limit to human capacity for work and to human en- 
durance of toil. When that limit was reached, the 
question simply resolved itself into whether causes 
would be allowed to accumulate and incumber the 
dockets, or some other means be devised to hear and 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 299 
Railroad v. Byrne. 

dispose of them. The act has been referred to as a 
measure for the relief of the supreme court. This is a 
misnomer and a misconception. The act does not re- 
lieve the supreme court or its judges from labor; it 
was not so intended, but to relieve litigants from the 
delay which had become unavoidable from overcrowded 
dockets.'* 

The court established by the act of 1895 contributed 
to this general purx)Ose. It only had jurisdiction of 
cases appealed to this court from the chancery courts 
of the State, it is true ; but the relief it afforded in the 
final disposition of these cases enlarged the time of the 
court for the trial and consideration of cases brought 
up from the circuit, common-law, and criminal courts 
of the State. This limited relief was, after the lapse 
of several years, deemed insufficient, it is to be pre- 
sumed, by the general assembly; for such is the well- 
known fact, and the last act was passed providing for 
the review of other classes of litigation. The general 
purpose of both acts was to facilitate the final dispo- 
sition of all classes of litigation in this court, and the 
provisions of both are the means by which this general 
purpose was undertaken to be effected. The purposes 
and objects of the two acts are germane. They are 
the same, and constitute but one subject. They could 
have been embraced in one act under a proper title, and 
therefore the latter is proper matter of amendment of 
the first. When a statute has but one general object 
or purpose, the subject is single, however multitudinous 



300 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Byrne. 

may be the means or instrumentalities provided for ef- 
fecting that purpose. 8tate v. Brovyii, 103 Tenn., 449, 
53 S. W., 727; Morrell v. Fickle, 3 Lea, 79; State v. 
Haniby, 114 Tenn., 364, 84 S. W., 622; Cannon v. 
Mathes, 8 Heisk., 504; Frazier v. Railroad Co., 88 
Tenn., 157, 12 S. W., 537. 

The object and purpose of the act, as a general thing, 
is the subject of it, in the sense of this mandate of the 
constitution. We have, then, only to determine whether 
OP not the subject expressed in the title of the act of 
1895 -is broad and comprehensive enough to cover the 
common object and purpose of it and the present act. 
We think it is. It is entitled "An act to establish a 
court of chancery appeals; to define its jurisdiction 
and powers; to regulate the appointment and election 
and fix the salaries of the judges thereof; to prescribe 
the duties and fix the compensation of the clerks and 
marshals thereof; and to limit the jurisdiction of the 
supreme court in regard thereto." The subject here 
expressed is the creation of an intermediate appellate 
court. This is clearly indicated by the language used. 
It is sufficient to give notice to the members of the 
legislature and the public that such a court is intended 
to be established, which is all that the constitution re- 
quires to be done. That the court was styled a court 
of chancery appeals could not be understood as lim- 
iting the object of the court or the jurisdiction to be 
conferred upon it, because by the succeeding section 
of the title notice is given that the act will contain a 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 301 
Railroad t. Byrne. 

provision defining the jurisdiction of the court to be 
established. The dominant purpose which the title ex- 
presses is the intention to create a court of intermediate 
appellate jurisdiction, and not the nature and extent 
of the jurisdiction to be conferred upon that court; 
that being a detail to be stated and defined in the body 
of the act There is a broad distinction between the 
purpose to create a court and the jurisdiction to be 
conferred upon that court, and the two must not be 
confused. This is strongly stated by Mr. Justice Free- 
man in the case of Jackson v. Nimmo, 3 Lea, 597, 
which involved the constitutionality of the act passed, 
in 1877, conferring on chancery courts of the State 
jurisdiction of certain actions which theretofore was 
vested exclusively in the circuit and other courts of 
common-law jurisdiction. Speaking for the court he 
said: 

"The distinction attempted to be pointed out is be- 
tween the existence of the court as a concrete fact and 
the jurisprudence which that court administers by the 
agencies of its organism. . . . The court must nec- 
essarily be existent before it can exercise jurisdiction at 
all ; so that it is a separate and independent thing, both 
in thought, logic, and fact, from the matter of its ju- 
risdiction. This may be more or less extensive, may 
fiuctuate, be enlarged or diminished, and yet the court 
remains, as we^ have said, the same organic thing, 
ready to do the work that may be assigned to it, 
whether much or little." 



302 TENNESSEE REPORTS. [US Tenn. 

Railroad v. Byrne. 

This construction of the title of the ori^nal act is 
well supported by the previous adjudications of this 
court. We will refer to only a few of them. The title 
of the act involved in the case of Cannon v. Mathes, 
supra^ was in these words: "An act to fix the State 
tax on property." Acts 1870, p. 120, c. 74. The first 
section of the act levied a State tax of forty cents on 
every flOO worth of property; the second section re- 
pealed a former act upon the same subject; the third 
section prescribed the manner and order in which the 
comptroller and the treasurer were authorized to dis- 
pose of public money; and section 4 increased the tax 
on privil^es fifty per cent. The objection to the bill 
was that the title did not express its subject and that 
the body contained two subjects. The court, speaking 
through Chief Justice Nicholson, after stating the rules 
of construction to be applied in such cases, held that 
the general subject of the act was State revenue, that 
all of its provisions related to this subject, and that it 
was sufficiently expressed in the title. The act was 
sustained. 

The case of MorreU v. Fickle, supra, is very much in 
point The general assembly of 1879 passed an act 
entitled "An act to establish a chancery and law court 
at Bristol, in the county of Sullivan." Acts 1879, p. 
161, c. 127. The first nine sections of the enacting part 
of the act provided for the establishment of a chancery 
court to be held at Bristol by the chancellor of the di- 
vision in which Sullivan county was then embraced, 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 303 
Railroad t. Byrne. 

and the other sections for a law court to be held there 
by the judge of that judicial circuit. The act was as- 
sailed upon the ground that the title did not express 
the subject and that the body embraced two subjects. 
Mr. Justice McFarland, speaking for the court, said : 

"The argument is that this act embraces two subjects 
—one, the establishment of a chancery court; the other, 
the establishment of a law court. 

"The solution of this question depends in a great 
measure upon whether we adopt a liberal or a strict 
construction of the clause in question. A construction 
might be adopted of such a latitudinous character as vir- 
tually to neutralize the beneficial effects intended to be 
secured. On the other hand, a too rigid and strict 
construction would, in many instances, unnecessarily 
embarrass useful legislation. 

"The duty of the court to pass upon the constitution- 
ality of legislative acts is a very grave and responsible 
one. Every presumption should be made in favor of 
the validity of laws. The members of the legislature 
in enacting laws must, of niecessity, judge of their con- 
stitutionality in the first instance, and the opinion of 
that body, which is not conclusive upon the court, is 
yet entitled to respectful consideration, due from one 
department of the government to another; and while 
the constitution is the supreme law, and the court 
should not, out of any mere feeling of deference to the 
legislature, hesitate to maintain its supremacy, yet leg- 
islative acts should not be subjected to a hypercritical 



304 TENNESSEE REPORTS. [119 Tenn. 

Railroad ▼. Byrne. 

test. If subject to two reasonable constructions^ they 
should be construed so as to give them effect^ rather 
than to defeat them. 

''They should not be declared void unless they appear 
to be manifestly so according to the plain letter and 
spirit of the constitution. Such are, in substance, the 
general principles maintained by Judge Cooley in his 
standard work (Cool^, Const. Lim., p. 182) and also 
by this court in Cannon v. Mathes, 8 Heisk., 504. 

"Coming more directly to the provisions in question, 
Judge Cooley says, and his language is quoted with 
approbation in the case above referred to, that 'there 
has been a general disposition to construe these pro- 
visions liberally, rather than embarrass the l^islation 
by a construction whose strictness is-unnecessary to 
the accomplishment of beneficial purposes for which 
it i8 adopted.' 

*^Again : 'The general purpose of these provisions is 
accomplished when a law has but one general subject, 
which is fairly indicated in its title. To require every 
end and means necessary or convenient for the accom- 
plishment of this general object to be provided for by 
a separate act would not only be unreasonable, but 
would actually render legislation impossible' Const. 
Liin., 144; Cannon v. Mathes, 8 Heisk., 519. . . . 

*-A correct vifew of this question may be obtained by 
bearing in mind the evils intended to be guarded 
ajrainst. 'The intent of these provisions was to prevent 
the* union in the same act of incongruous matters and 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 305 
Bailroad v. Byrne. 

of objects having no connection or relation, and, with 
these, to prevent surprise in legislation, by having mat- 
ter of one nature embraced in a bill where the title ex- 
pressed another.^ To prevent log-rolling or omnibus 
bills, and the evils and corruptions sometimes supposed 
to prevail in such cases, to prevent smuggling through 
important measures as amendments to or as parts of 
other laws, with which they have no connection, such, 
for instance, as attaching a charter for a bank to a 
bill granting aid to a railroad, or a section creating a 
felony to an act relating to a public road. 

"Does this act come fairly within the evil to be 
remedied? Shall we say that the establishment of a 
chancery court at Bristol is one general subject, and 
the establishment of a law court is another general 
subject, and that it is necessary, in order to maintain 
the integrity of a clause of the constitution in question, 
to hold that these two general subjects should be ac- 
complished by separate acts? . . . Treating the gen- 
eral subject of the act as the establishment of such ad- 
ditional courts for Sullivan county as the public e3p- 
gencies demanded, it is manifest that this one subject 
is expressed in the title, to wit, *An act to establish a 
chancery and law court at Bristol, in Sullivan county.' 
- . . It is argued that the title indicates but one 
court, a court having common-law and equity jurisdic- 
tion; whereas, the act provides for two courts, one of 
chancery and the other of law jurisdiction. This may 

119 Tenn— 20 



30« TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Byrne. 

be the strictly gramma,tieal construction of the lan- 
guage of the title, but the point, though ingeniously 
pressed, is too fine for practical application.'^ 

The case of State v. Brown, supra, involved the con- 
stitutionality of an act entitled "An act to amend sec- 
tion 5365 of Milliken & Vertreerf Compilation of Laws 
of Tennessee, being section 4614 of the Code as 
amended by chapter 56 of the Acts of 1871, so as to 
raise the age of consent as set forth in said section 
to twelve years, and to prescribe the punishment in the 
penitentiary against persons having carnal knowledge 
of females over twelve and under sixteen years and one 
day of age," Acts 1893, p. 273, c. 129. 

The body of the act contained provisions as Spe- 
cifically indicated in the title, and also for the punish- 
ment of persons aiding or abetting in the commission 
of those two offenses. It was held that the subject 
expressed in the title was the prevention and punish- 
ment of carnal connection with young females, and that 
all the provisions of the act related to this subject 
and were germane. It is there said : 

'*The subject of the legislation is general, and, being 
80, it is sufficient to cover all provisions in harmony 
with the object sought to be accomplished. It was not 
essential that -the title be made an index or epitome of 
the act, nor that it should set forth the modes, means, 
or instrumentalities provided in the act for its ad- 
ministration and enforcement." 

In Rijan v. Terminal Vompany, 102 Tenn., 127, 50 S 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 307 
Railroad ▼. Byrne. 

W., 744, 45 L. R. A., 303, where an act was assailed 
for insufficiency of title, it is said : 

"The title gives clear notice to the l^islature and 
the public that the object of the act is to provide for 
the organization of railroad terminal companiesi, which 
shall be clothed with powers necessary to effectuate 
the purposes of their creation." i 

For this reason the act was held to comply with this 
mandate of the constitution. And in Truss v. State, 
13 Lea, 312, where this question was involved, it is 
said: 

"Whatever is of sufficient import to direct the mind 
to the subject of proposed legislation meets the object 
of the constitution." 

The validity of the act of 1907, however, does not 
depend upon the scope of the title of the act of 1895, 
which we have been discussing, but upon its own title. 

The titles of the two acts are not the same. That of 
the last not only sets out in full the title of the original 
act, but materially enlarges it. The subject expressed 
is that of the original act^ and the amendment of that 
act by increasing the number of judges of the court 
created by it, changing the name of the court, increasing 
its jurisdiction, and further limiting the jurisdiction of 
the supreme court. 

Thus the title of the act of 1895 and its body are 
both amended by the latter act. 

While a general title covering an entire subject can- 
not be enlarged by an amendatory act so as to include 



308 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Byma 

other matter, because thereby two subjects would be 
introduced in the body of the act, we can see no reason 
why a restrictive title cannot be enlarged by that of 
an amendatory act, so as to allow legislation germane 
to the body of the original act The title of the original 
act could have been made broad enough to cover matter 
of the amendment, and whatever could have been done 
originally can be done by amendment. If the rule were 
otherwise, it would be impossible to amend an act 
with a restrictive title, however germane the proposed 
amendment might be to the body of the original act. 
While this direct question has not before been pre- 
sented to this court, yet we think the principle is dis- 
tinctly recognized in our cases. 

In the case of Hynian v. State, supra, relied upon by 
counsel in support of their proposition, the amendatory 
act merely stated the caption of the original act, which 
was restrictive, and did not enlarge it so as to cover 
the matter of the amendment, which, admittedly, was 
germane to the body of the act. For this reason the 
latter act was held void. It is there said : 

^^The title to the amendatory act in no way indicates 
the character of the amendment beyond a correct re- 
cital of the title of the act amended. It is not, however, 
important that the title of the amendatory act should 
do more than recite the title or substance of the act 
amended, provided the amendment is germane to the 
subject of the original act and is embraced within the 
title of such amendatory act. In other words, if the 



11 Gates] SPECIAL SEPTEMBER TEKM, 1907. 309 

Railroad v. Byrne. 

title of the original act is sufficient to embrace the mat- 
ter covered by the amendment, it is unnecessary that 
the title to the amendatory act should of itself be 
sufficient.'* 

And in the case of State v. Algood, in 87 Tenn., 163, 
10 8. W., 310, it is said: 

"The criticism is that the title does not indicate the 
character of the proposed amendment This is not 
necessary, if in fact the amendment is germane to the 
original act and is embraced within the title of the or- 
iginal or amended act. In such case, the title of the 
original act being made a part of the title of the amen- 
datory act, the particulars of the amendment need not 
be shown by the title." 

These cases are cited with approval in the later ones 
of Goodhar v. Memphis, 113 Tenn., 35, 81 S. W., 1061, 
and Galloway v. Memphis, 116 Tenn., 747, 94 S. W., 
75. 

We think it clearly inferable, from the quotation, we 
have made from Hyman v. State, that if the title to the 
amendatory act attacked in that case had, in addition 
to reiterating the title of the original act, gone further 
and stated the subject of the amendment, this court 
would have sustained the act The object of requiring 
the subject of an act to be expressed in the title is to 
give notice to the members of the general assembly and 
the public of the character of the legislation about to 
be enacted. The evil intended to be prevented is sur- 
reptitious legislation. Clearly, if the title of the 



310 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Byrne. 

amendatory act gives notice that a particular act is 
to be amended and the nature of the amendment pro- 
posed to be made, this is done so far as compliance with 
the mandate of the constitution can effect it. The gen- 
eral assembly is empowered by the constitution to 
amend all laws; the only limitation upon it being that 
the title op substance of the law amended shall be re- 
cited in the caption or otherwise in the amendatory act. 
The power to amend acts with restrictive titles is not 
withheld, but it could not be exercised unless the re- 
strictive title can be enlarged so as to state the subject 
of the amendment. If the law were otherwise, it would 
result in much embarrassment to wholesome apd needed 
legislation. 

That the subject of the amendment is properly ex- 
pressed in the title of the amendatory act we think 
there can be no doubt. 

Certainly, the statement that the act was for the 
purpose of amending the one creating the court of chan-. 
eery appeals, so as to increase the number of judges of 
the court, to change its name and increase its jurisdic- 
tion, and further limit that of the supreme court, con- 
veyed to the mind of every one information that addi- 
tional jurisdiction, other than that of chancery appeals 
already vested in that court, was intended to be con- 
ferred upon it. These changes proposed were of the 
most radical character, and well calculated to give no- 
tice that enlarged jurisdiction was intended to be con- 
ferred upon the court. The jurisdiction, as it had ex- 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 311 
Railroad v. Byrne. 

isted, was confined to the trial of chancery appeals, 
except those involving the revenue of the State, small 
in number, and there was no other civil jurisdiction 
to be conferred, but that of cases brought by proper 
proceedings in error from the circuit and common-law 
courts of the State. The notice that the judicial force 
would be increased clearly. indicated a large increase of 
work to be performed, and the jurisdiction already pos- 
sessed of necessity gave notice that the increase must 
relate to other classes of litigation. The name of the 
court implied that this increased jurisdiction would 
be cases of a civil nature. 

We also think that the provisions of the act of 1907 
are amendatory as purported in the title. While the 
act changes the name of the court of chancery appeals, 
increases its judicial force, confers ui>on it other and 
further jurisdiction and powers of the most important 
character, and provides for the exercise of them in a 
manner which that court could not under the act cre- 
ating it, it is not an independent and complete scheme 
of legislation and does not establish a new court This 
is made clear by a comparison of the provisions of the 
original act, which is a complete scheme of legislation, 
with those of the one in question. 

The act of 1895 creates and establishes a court of in- 
termediate appellate jurisdiction, styled the "court of 
chancery appeals,^' provides for the number of judges 
to preside in it, their eligibility, qualifications, com- 
pensation, mode of appointment and election, the 



312 TENNESSEE REPORTS. [119 Tenn. 

Railroad y. Byrne. 

filling of vacancies, permanent or temporary; fixes the 
regular sessions of the court and authorizes special ses- 
sions to be held; provides for clerks and marshals to 
keep its records and attend it^ and their compensation; 
makes it a court of record, defines its jurisdiction and 
powers and the mode of invoking them, and the effect 
of its judgments and decrees as liens upon the lands 
of parties against whom decrees may be pronounced; 
authorizes it to adopt its own rules of practice, and 
prescribes the proceedings to be pursued to review its 
decrees. Here a court is creatied, invested with well- 
defined jurisdiction and powers, and equipped with all 
the officers and machinery necessary and convenient for 
the exercise of them. Not only a court is created, but 
every constituent element necessary for its organiza- 
tion, the exercise of its jurisdiction, and the enforce- 
ment of its decrees is provided for. This is a complete 
and independent scheme of legislation, however limited 
the jurisdiction and powers of the court established 
may be. 

Contrast this with the enacting clauses of the act of 
1907. They do not purport to establish a court, and 
do not in fact do so, but in terms increase the judicial 
force of a court previously established and organized, 
the court of chancery appeals, from three to five judges, 
recognizing and conceding the official existence and 
continuance in office of the three composing that court; 
change the times when the sessions of the court are to 
be held, and the name and style of the court, and greatly 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 313 
Railroad t. Byrne. 

enlarge and extend its jurisdiction and power, and pro- 
vide new and different means of invoking them. This 
is the sum and substance of this act. It is obvious that 
these provisions do not constitute a complete scheme of 
legislation. They do not create a court of judicature, 
complete in all its essential constituents— a court which 
can be organized, try and determine cases, and enforce 
and execute its judgments. Without the provisions of 
the act of 1895 we would have judges and jurisdiction 
without a court, without clerks and marshals, without 
records, and with no means of enforcing their adju- 
dications. 

If it be conceded that this act establishes a court, 
still it would be abortive, for the reasons stated and 
the further reason that, while five judges would be 
necessary to exercise the jurisdiction conferred upon it, 
it would, under the provisions of the act, have only two 
judges for the first three years of its existence, and for 
want of a quorum could do nothing. It is true that by 
section 2 the three judges of the court of chancery ap- 
peals are continued in office as judges of the court of 
civil appeals, during the constitutional term for which 
they were elected; but the provision to this effect would 
be invalid, because the legislature has no power to ap- 
point or elect judges. This provision is a strong evi- 
dence of the amendatory character of the act; Tor it will 
not be presumed that the legislature intended to pass 
a void act, as this provision otherwise would be. If 



314 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Byrne. 

possible^ the provisions of an act must be so construed 
as to make them sensible and valid. 

While for these reasons it is unmistakable that the 
act of 1907 is not a complete and independent scheme 
of l^islation, creating a new intermediate appellate 
court to take the place of that established by the act 
of 1895, and thus by implication repealing that act, 
there are many things appearing upon the face of it 
that compel the conclusion that it is, as it purports to 
be in its caption, an act amendatory of the former one. 
In the first section it enacts, not that the court of chan- 
cery appeals be abolished, but that it be hereafter com- 
posed of five judges. In the second section it is enacted 
"that said court shall consist of three members now 
composing the same, and the governor shall, immedi- 
ately after this act takes effect, appoint and commission 
as judges of said court two additional judges, who shall 
hold their office'' until the first day of September, 1908, 
and until the qualification of their successors, and 
whose compensation shall be the same as provided for 
the present judges. Provision is- made for the election 
of the successors of the two new judges to be appointed 
by the governor at the next general election, but none 
made for that of the successors of the three judges of 
the court of chancery appeals until the expiration of 
their constitutional term of office, at which time "five 
judges of said court, instead of three as now provided, 
who shall have the same qualifications as now required 
for judges of said court, and said election shall be held 



11 Cate8] SPECIAL SEPTEMBER TERM, 1907. 315 

Railroad v. Byrne. 

in the same way and manner as elections for members 
of the said court are now held"— thus in terms recog- 
nizing the provisions of the former act providing for the 
qualification of judges and the mode of their election. 
In no other mapner are these matters provided for in 
the latter act. In section 7 it is provided that, aft^* 
the approval of this act, the supreme court shall not 
assign cases to the court of intermediate appellate ju- 
risdiction, the subject of the legislation, for trial, as it 
was authorized to do by the act of 1895. If the act 
of 1895 was intended to be repealed, what was the nec- 
essity of this provision? 

And by section 10 it is expressly enacted "that ex- 
cept as amended by this act said chapter 76 of the Acts 
of 1895 shall remain in full force." 

There is no ground here for the contention that the 
act of 1895 is repealed by implication. Repeals by 
implication are not favored, and a later act will not be 
held to thus repeal a former one upon the same subject, 
unless the two are absolutely repugnant and in irrecon- 
cilable conflict. Nothing short of this can have that 
olfect. McCamphell v. Utate, 116 Tenn., 107, 93 S. W., 
100; Fisher v. Baldridgc, 91 Tenn., 418, 19 S. W., 227; 
Frazier v. Railway Co., 88 Tenn., 163, 12 S. W., 537; 
Blaufield v. State, 103 Tenn., 593, 53 S. W., 1090. 

There is no conflict between the act of 1895 as amend- 
ed by that of 1907 ; but, on the contrary, the provisions 
of the two acts are necessary to carry into effect the 
common object of the general assembly in enacting them. 



316 TENNESSEE REPORTS. [119 Tenn. 

Railroad ▼. Byrne. 

The two together, instead of being repugnant, constitute 
a harmonious whole and one complete scheme of legisla- 
tion, establishing a court of intermediate appellate juris- 
diction, to expedite the review of the judgments and de- 
crees of trial courte and relieve litigants from delays in 
such matters caused by the congested condition of the 
dockets of this court. 

Therefore it is apparent that the case of Mdlone and 
others v. Williams and others, 118 Tenn., 390, 103 
S. W., 798, lately decided by this court at Jackson, and 
relied upon by counsel to support the latter subdivision 
of their objection to the constitutionality of the act^ is 
not in point. There the later act, while purporting in 
its title to amend a former one, constituting the charter 
of the city of Memphis, contained provisions covering 
the whole subject of the creation and incorporation of 
a municipality, and was in form and substance a new 
charter, intended to supersede and take the place of the 
old one, which the title purported to amend. It vacated 
and abolished all the offices existing under the old char- 
ter, and created new ones, with provisions for the ap- 
pointment and election of new officers. It was, in short, 
a new charter, intended to and effective, if it had been 
valid, to supersede the existing charter of the city. 
Without going into further details, the character of the 
legislation in that case held void will fully appear when 
it is stated, as was conceded, that the bill was originally 
introduced as an independent act to provide a new char- 
ter for the city of Memphis, and its title subsequently 



11 Cates] SPECIAL SEPTEMBER TERM, 1907. 317 
Railroad ▼. Byrne. 

changed so as to purport to be amendatory of the one 
then in fprce. The act nnder consideration in this case 
and the one involved in that case are entirely different 
in form, substance, and effect, and the intention of the 
legislature in enacting the one directly opposite of that 
in enacting the other. The act under consideration pur- 
ports in its caption to, and in its body does, amend the 
former act in certain particulars, but expressly provides 
that all the other provisions of that act shall remain in 
full force and effect. It does not abolish the court or 
vacate any ofllce. The two are not in conflict, but can 
stand together and be enforced as a consistent whole. 
The act declared void in Malone and others v. Williarm 
and others in effect abolished the old charter, vacated 
the offices of all its ofllcers, and created a complete and 
new city government. It covered the whole ground 
legislated ui)on in the former act, constituting the char- 
ter of the city of Memphis. The two acts were inconsist- 
ent and irreconcilable, and could not stand together, and 
therefore it was properly held that the subject of legisla- 
tion in the body of the latter act was not expressed in 
its title, and that the act was in contravention of sec- 
tion 17, art. 2, of the constitution, and invalid. 

We therefore are of the opinion and hold that the sub- 
ject of chapter 82 of the Acts of 1907 is expressed in its 
title, and the act is amendatory in its nature, and valid 
and constitutional. 

The second contention of the parties is that upon a 
proper construction of section 7 of the amendatory act. 



318 TENNESSEE REPORTS. [119 Tenn. 

# 1 

Railroad v. Byrne. 

conferring jurisdiction upon the court of civil appeals, 
cases involving the constitutionality of a statute of Ten- 
nessee and certain other classes of litigation are except- 
ed, and the jurisdiction of this court to hear and de- 
termine them upon proper proceedings in error as here- 
tofore exercised is not only left undisturbed, but ex- 
pressly reserved, and that, since this case involves a 
question of that kind, they are entitled to have it here 
tried and finally determined. The particular part of 
this section which it is said must be so construed is in 
these words: 

"That the jurisdiction of the said court of civil appeals 
shall be appellate only and shall extend to all ca8e^5 
brought up from courts of equity and chancery courts 
except cases in w^hich the amount involved, exclusive of 
costs, exceeds one thousand dollars, and except cases in- 
volving the constitutionality of statutes of Tenneseee, 
contested elections for oflRce, State revenue and eject- 
ment suits, and to all civil cases tried in the circuit and 
common-law courts of the State in which appeals in tho 
nature of writs of error, or wTits of error, may be ap- 
plied for, for the puri)ose of having the action of said 
trial court reviewed." 

It is insisted that it was the intention of the legisla- 
ture that the exceptions following the provisions confer- 
ring jurisdiction in cases brought up from courts of 
iHjuity were also intended to apply to cases where pro- 
ceedings in error were prosecuted to review judgments 
of the circuit and other courts of common-law jurisdic- 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 319 
Railroad v. Byrne. 

tion of the State, and that this intent appears upon the 
face of the statute, when considered and interpreted in 
the light of the constitutional jurisdiction of this court, 
its history, and the previous statutes in relation to that 
jurisdiction, and the objects and purposes of the legisla* 
ture in enacting this one, and that it should be so con- 
strued. 

This contention involves the jurisdiction of this court 
and the right of litigants to invoke it directly by appeal, 
appeal in the nature of a writ of error, and writ of er- 
ror, the forms of proceeding in error which have been 
so long allowed by express statutes and freely exercised 
by all parties seeking to review the judgments of trial 
courts of the State, and an understanding of these mat- 
ters will aid in the decision of the question we now have 
to decide. 

The judicial department of the State was first created 
and made one of the co-ordinate branches of the State 
government by the constitution of 1834. The supreme 
court was established by that constitution and vested 
with its jurisdiction. The provisions in relation to 
these matters were brought forward and embraced, in 
almost the same words, in the constitution adopted in 
1870. The judiciary represents its particular part of 
the sovereignty of the State which the people, the origi- 
nal fountain of all governmental power, have vested 
in it, and its power is as absolute and uncontrollable 
within its sphere as that of the legislative and executive 
departments. They all have the same high origin and 



320 TENNESSEE REPORTS. [119 Tenn. 

Railroad v. Byrne. 

are equally independent ' The supreme court, establish- 
ed and vested with its jurisdiction and powers by the 
constitution, is the highest judicial tribunal in the State. 
It takes its rank from the constitution, and it and its 
jurisdiction cannot be interfered with by the other 
branches of the government. Its adjudications are final 
and conclusive upon all questions determined by it, save 
those reserved to the federal courts, which may be re- 
viewed by the supreme court of the United States. lliV 
Icr V. Coulee, 5 Sneed, 432; Dodds v. Duncan, 12 Lea, 
731 ; State v. OannaicoAjy 16 Lea, 124. 

Its jurisdiction is appellate only; the concluding part 
of the last sentence of article 6, section 2, referring alone 
to the powers which it may exercise to enforce that 
jurisdiction. State v. Bank of Tennessee, 5 Sneed, 573; 
Mem/phis v. Halsey, 12 Heisk, 213; State t\ Ganna/way, 
16 Lea, 124. 

The establishment of the court and vesting it with ap- 
l)ellate jurisdiction only is an implied declaration that 
it shall possess some revisory jurisdiction and powers, 
and that some right of appeal to it must exist. This in- 
violable jurisdiction, and the right to invoke it, undoubt- 
edly extends to cases involving questions of law of great 
public importance; but no definite statement of it can 
be outlined, and each case must be determined with re- 
gard to the questions involved as it arises. The general 
assembly may, by the establishment of courts of inter- 
mediate appellate jurisdiction or other appropriate leg- 
islation, limit and restrict the right of litigants to resort 



11 Gates] SPECIAL SEPTEMBER TEBM, 1907. 321 
Railroad v. Byrne. 

to it, and regulate the mode of doing so, but not so as to 
unreasonably interfere with or embarrass its ultimate 
revisory i)owers ; and it is always for this court to de- 
cide when its constitutional jurisdiction is encroached 
upon. It has exercised this power since it was first es* 
tablished. Miller v. Conlee, supra; State v. JSonfc, su- 
pra; Chestnut v. McBride, 6 Baxt., 95; Ifewman v. Scott 
County Justices^ 1 Heisk., 787; Ward v. Thomas, 2 Cold., 
565; Himdhausen v. Marine Fire Insurwnce Co., 5 
Heisk., 704; McElwee y. McEkoee, 97 Tenn., 657, 37 S. 
W., 560; Chattanooga v. Keith, 115 Tenn., 589, 94 S. W., 
62. 

The right of direct resort to this court by appeal, ap- 
peal in nature of a writ of error, and writ of error to re- 
view judgments of trial courts was provided for by ap- 
propriate legislation when it was first established; and, 
notwithstanding many attempts have been made to limit 
and restrict this' right, it has never been done, unless it 
is by the act of 1907 amending, that creating the court 
of chancery appeals. The statutes establishing the court 
*of referees, the arbitration court, and the court of chan- 
cery appeals, all courts of intermediate appellate juris- 
diction, did not limit this right. Those courts had no 
direct revisory jurisdiction. All proceedings in error 
were taken directly to this court in the usual way, and it 
assigned such cases as it deemed proper to those for de- 
cision. 

These are matters that must be taken into considera- 

119 Tenn— 21 



322 TENNESSEE BEPOETS. [119 Tenn. 

Railroad v. Byrne. 

tion in constrning and passing upon the validity and ef- 
fect of all statutes which in any manner affect the juris- 
diction of this court and the right to invoke it, under 
the well-settled rules that all statutes must be construed 
in connection with all others constituting the E^st^n of 
which they are a part, and that those which limit the 
jurisdiction of an established court, or confer it upon 
another court, are to be construed strictly, so as not to 
interfere with the exercises of that jurisdiction by the 
former court, unless the legislative intent that that be 
done affirmatively appears. 

Now, coming to the direct question for decision, the 
controlling principle in the construction of all statutes 
is to arrive at the intent of the general assembly in en- 
acting them. When that intent is ascertained, it must 
be given effect, regardless of the wisdom, policy, or con- 
venience of the act, as these are considerations for the 
legislature, with which the courts haVe nothing to do. 
If such intent appears from the plain, unambiguous lan- 
guage of the statute, there is no room for construction, 
and it must be enforced as written; but when the act is' 
ambiguous, and its meaning uncertain, it is the duty of 
the court to ascertain and declare the intention of the 
lawmakers, and to so construe the statute that the true 
legislative intent may be carried out. 

Ambiguity in a statute may arise either from con- 
fusion or indefiniteness in the language used, or the 
consequences of strict adherence to the literalism of that 



11 Gates] SPECIAL SEPTEMBEE TEBM, 1907. 323 
Railroad ▼. Byrne. 

language.. In Lewis' Sutherland on Statutory Construc- 
tion, section 377, it is said : 

"Uncertainty of sense does not alone spring ft-om un- 
certainty of expression. It is always presumed, in re- 
gard to a statute, that no absurd or unreasonable result 
was intended by the legislature. Hence if, viewing a 
statute from the standpoint of the literal sense of its 
language, it is unreasonable or absurd, and obscurily of 
meaning exists, calling for judicial construction, we 
must in that event look to the act as a whole, to the sub- 
ject with which it deals, to the reason and spirit of the 
enactment, and thereby, if possible, discover its real 
purposes; and, if such purposes can reasonably be said 
to be within the scope of the language used, it must be 
taken to be a part of the law, the same as if it were 
plainly expressed by the literal sense of the words used. 
In that way, while courts do not and cannot properly 
bend words out of their reasonable meaning to effect a 
legislative purpose, they do give to words a liberal or 
strict interpretation within the bounds of reason, sacri- 
ficing literal sense and rejecting interpretation not in 
harmony with the evident intent of the lawmakers^ ratlj- 
er than that such intent shall fail." 

We think there is such ambiguity upon the face of the 
provision of this act, conferring jurisdiction upon the 
court of civil appeals that judicial interpretation and 
construction are necessary to ascertain and give effect 
to the intent of the legislature; for, if it be read literally, 
it will be in part unconstitutional and void, in part in- 



324 TENNESSEE BEPORTS. [119 Tenn. 

Railroad v. Byrne. 

operative, and will lead to the most absurd, unreasona- 
ble, and inconsistent results. The general object of the 
legislature in establishing a court of intermediate ap- 
pellate jurisdiction, we have seen, was to relieve the 
congested dockets of this court. It is presumed that 
that deliberative body, in a matter of this great impor- 
tance, had a well-defined and consistent scheme or plan 
to effect this object. The object of the legislation, the 
relief of the dockets of this court and prevention of de- 
lays resulting from its congested condition, could only 
be effected by conferring upon the court created jurisdic- 
tion* to review a portion of the cases which were, before 
the passage of this act, ordinarily brought to this court. 
The legislature had to determine the jurisdiction to be 
conferred upon that court, and in doing so it must be 
presumed that it had in mind the constitutional jurisdic- 
tion of this court, which could not be conferred upon any 
other court or limited and restricted, and that there 
were also certain classes of litigation which are of such 
importance to litigants that they have in the past always 
been prosecuted to final determination in this court, and 
a review of which, in an intermediate court, would only 
entail additional delay and expense to litigants, and that 
it also knew and took into consideration the fact that 
in cases of comparatively small importance litigants 
would probably be satisfied by a review of the judgments 
and decrees of trial courts in a court of intermediate 
jurisdiction, and allow the litigation there to end, when 
they would not do so in those of greater importance. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907, 325 

Railroad v. Byrne. 

The further fact that, if the cases of which the court of 
civil appeals was given jurisdiction were to be ultimate- 
ly brought to this court for review, the creation of that 
court would utterly fail of its purpose, could not have 
been overlooked. Considering the constitutional origin 
and jurisdiction of this court, and its dignity as the 
highest tribunal of the State, it was also fit and proper, 
and must have been intended, that the cases directly 
brought to it should be those of the highest importance, 
and that the inferior appellate court should have juris- 
diction of those of less importance. We think the legis- 
lature was controHed by these considerations, and that 
this fully appears from the provisions in the statute ex- 
cepting cases of certain classes from the jurisdiction of 
the court of civil appeals. We will briefly consider the 
character and nature of the cases coming within these 
exceptions. 

Cases involving the constitutionality of statutes of 
Tennessee, the revenues of the State, and contested elec- 
tions are excepted. These are the most important class- 
es of litigation in our courts, and without doubt are of 
that character which the jurisdiction of this court to 
review by direct proceedings in error from the trial court 
cannot be limited or restricted. Cases involving consti- 
tutionality of statutes, on account of their great imi)or- 
tance, should be heard and determined by the court of 
last resort as soon as possible, in order that the public 
may know whether the statute in question is valid or 
invalid. The imperative necessity of speedy, uniform. 



326 TENNESSEE EEPOETS. [119 Teniu 

Railroad v. Byrne. 

and final decision of such cases is too evident to require 
elal)oration. Cases involving State revenue are also of 
like importance. They vitally affect the interests of the 
State and all of its citizens. There is the utmost neces- 
sity that they be decided by this court speedily and 
finally. It has always been the policy of the legislature 
and of the courts to have this done, and in furtherance 
of this policy it is made the duty of the courts to ad- 
vance and hear them with preference over all other 
causes* and they were excepted from the jurisdiction of 
the referee court, the arbitration courts and the court 
of chancery appeala There has never been any statute 
in this State limiting the right of either the State op the 
tajcpayer to bring such cases directly before this court 
for adjudication, and it is not to be presumed that the 
legislature, without some imperative reason therefor, 
would change its settled policy in so important a mat- 
ter. 

The constitutionality of a statute and the validity of 
a tax are purely legal questions, and the decision of them 
by an intermediate appellate court would not, as a rule, 
satisfy litigants or end the litigation; nor would it 
lighten the labors of this court any more than the de- 
cision of them by the court of original jurisdiction. 
They are generally brought before this court, and should 
be, in order that a certain and uniform rule be establish- 
ed. 

Ejectment cases involve rights and questions of law 
of the utmost importance to the people of the State. Our 



11 Cates] SPECIAL SEPTEMBEB TERM, 1907. 827 ' 
Railroad v. Byrne. 

landTaws are a complicated artificial ^^stem, compoBed 
of nomerons statutes enacted from time to time^ and 
the stability of titles and yalue of this class of property 
imperatively require that the construction of these stat- 
utes be uniform and settled. The people of the State 
are more deeply interested in the property involyed in 
4Enich cases than any other kind; the disputes and con- 
troversies in relation to it are more hotly contested, and 
produce more bitterness and violence than tha;t in re- 
lation to any other; and every consideration requires a 
final and speedy determination of this class of litiga- 
tion. 

Contested elections are also cases of great importance, 
both to the contestants and the public. When they are 
once instituted, they are, with rare exception, prose- 
cuted to final determination in this court. It is also 
the policy of the legislature, in order to end the strife 
and animosities which attend such contests, to have them 
speedily and finally decided, and for this purpose a spe- 
•cial tribunal has been created to try contests for certain 
offices. . 

The exception of cases involving the constitutionality 
of statutes of Tennessee, the revenues of the State, and 
contested elections from the jurisdiction of the court 
of civil appeals was evidently made because the con- 
stitutional right of litigants to invoke the jurisdiction 
of this court to review them could not be limited or re- 
stricted, and that of ejectment cases on account of the 
very great importance of that class of litigation, and the 



328 TENNESSEE EEPORTS. [119 Tenn. 

Railroad r. Byrne. 

almost uniform practice to bring them to this court 
for final decision. We are of the opinion that it was 
the evident intent of the legislature that all cases com- 
ing within these classes should be excepted from the 
jurisdiction of the court of civil appeals, regardless of 
whether they originated and were brought up from^ the 
chancery or circuit and other common-law courts of the 
State, and that section 7 of the statute should be so read 
and construed. If we were to construe this section 
otherwise, so far as it purports to confer jurisdiction 
upon that court of cases involving the constitutionality 
of statutes, the revenues of the State, and contested elec- 
tions, it would be void, and as to ej&ctment cases it 
would be inconsistent and absurd ; results which are al- 
ways to be avoided in the construction of statutes, if it 
is possible to do so. No good reason can be given why 
the exceptions contained in the statute should be ap- 
plied to cases appealed from the chancery court, 
and not to those brought up for review from 
the circuit and common-law courts; for none ex- 
ists. It is true that it is not necessary that 
a reason appear for the enactment of a statute; but the 
absence of one for a provision inconsistent with other 
provisions of a statute and the purpose of the legislation 
is evidence that the inconsistency is apparent only, and 
was not intended. We do not think the legislature In- 
tended to make a distinction between cases brought up 
for review because of the court of original jurisdiction. 
The importance of controversies is not measured in this 



11 Gates] SPECIAL SEPTEMBER TEEM, 1907. 329 

Railroad y. Byrne. 

manner, but by the questions of law or fact or the rights 
of the parties involved. The chancery and circuit courts 
of the State have very large concurrent jurisdiction, em- 
bracing all the cases excepted from the jurisdiction of 
the court of civil appeals save contested elections; and 
the sam*^ reason that would lead the legislature to ex- 
cept cases originally instituted in one court would ap- 
ply to those brought in the other. We do not think the 
l^slature could have intended such an inconsistency 
and absurdity as a distinction of this character in the 
right of litigants to invoke the jurisdiction of this court, 
nor do we think it intended to discriminate between liti- 
gants bringing suits in the chancery and circuit courts 
of the State unfavorably to those suing in the latter, 
which is supposed to be nearer to and more favored by 
the people of the State on account of its jurisdiction and 
practice being in conformity with the common law. It 
is a familiar rule of construction that statutes axe to 
be construed, if possibly so as to give force and effect 
to all their provisions, and that no part thereof shall 
be inoperative. If section 7 be not construed to extend 
the exceptions there made to cases brought up from 
courts of common-law jurisdiction, one of the exceptions, 
that of contested elections, wholly fails. The chancery 
courts of the State have no jurisdiction of contested elec- 
tions in any case; nor did the court of chancery appeals, 
as originally established, have jurisdiction of such cases. 
Shields v. Davis, 103 Tenn., 538, 53 S. W., 948. The 
jurisdiction of such cases is vested in special tribunals 



330 TENNESSEE REPORTS. [119 Tenn. 

lUllroad. y. Byrne. 

and in the circoit courts of the State, and they alone have 
power to heap and determine them. Harmon v. Tyler, 
112 Tenn., 8, 83 S. W., 1041; Johnson Y. Brice, 112 
Tenn., 59, 83 S. W., 791. 

If these exceptions be confined to cases brought from 
the chancery court, this, one of the most important, 
will be meaningless and inoperative. Certainly tiie 
legislature did not intend this result The construction 
we have given this section sustains its validity, gives 
effect to all its provisions, and carries out the sole and 
only object of the creation of the court. It is to our 
minds clearly and indisputably in accord with the l^s- 
lative intent and necessary to make it effective. It is 
in accord with the spirit of the act— the only sensible 
construction that can be given it. It is in accordance 
with the well-settled rule that, whenever the legislative 
intent can be ascertained, it will be given effect, if pos- 
sible, without regard to the letter of the statute, and 
that the real intention of the legislature will always pre- 
vail over the literal use of terms. State v. ClarkwiUe 
<t R, Turnpike Co., 2 Sneed, 89; Brown v. Hamlett, 8 
Lea, 735. And a reasonable construction, rather than 
one that is unreasonable, must be given a statute, when 
it is susceptible of such construction. Home v. Bail- 
road, 1 Cold., 78; Bank v. Cooper, 2 Yerg*, 603, 24 Am. 
Dec., 517. 

The rule of construction applicable to this case is 
welJ stated in Lewis' Sutherland on Statutory Construc- 
tion, section 376, in these words: 



11 C5ates] SPECIAL SEPTEMBER TERM, 1907, 331 
Railroad v. Byrne. 

"When the intent is plain, words, and even parts of 
sentences, may be transposed to carry it into effect. Re* 
strictiye clauses, significant of the intent in certain di- 
visions, may be supplied by intendment in othera Gen- 
eral words do not always extend to every case which 
literally falls within them. When the intention can be 
collected from the statute itself, words may be modified, 
altered, supplied, or disregarded, so as to obviate any 
repugnance or inconsistency with such intention." 

This is in substance held in our own cases of TUic^oU, 
Sheppard & Co. v. hoyA, 111 Tenn., 146, 76 S. W., 911, 
and Wright v. Gunmngh4sm, 115 Tenn., 445, 91 S. W., 
293, and iSf*a*e v. Phoenix Insurance Co., 92 Tenn., 427, 
21 S. W., 893. To the same effect is the case of United 
mates V. Kirby, 7 Wall. (U. S.), 482, 19 L. Ed., 278. 
In the case of Oold v. Fite, 2 Baxt., 249, Mr. Justice 
Oooi)er, speaking for the court said: 

^^A thing which is within the intention of the makers 
of a statute is as much within the statute as if it were 
within the letter. And a thing which is within the letter 
of a statute is not within the statute, unless it be within 
the intention of the makers, and such construction ought 
to be put upon it as does not suffer it to be elevated" 
[included]. 

In Rose v. Wortham, 95 Tenn., 508, 32 S. W., 459, 30 
L. R. A., 609, Mr. Justice Wilkes says: 

"In Sutherland on Statutes and Statutory Construc- 
tion it IS said in substance that the presumption is that 
the lawmakers have definite purposes in every enact- 
ment, ... and that purpose is an implied limita- 



332 TENNESSEE REPORTS. [119 Tenn. 

Railroad y. Byrne. 

tion on general terms and a touchstone for the exposition 
of narrower terms used in the statute. The cardinal 
purpose of the act must control, and words and phrases 
must be read in such sense as t«rill harmonize with the 
subject-matter and general purpose of the statute. Mr. 
Kent, upon the same subject, says: ^In the exposition 
of a statute, the intention of the lawmakers will prevail 
Qj^er the literal sense of the terms, and its reasons and 
intentions will prevail over the strict lettCT.' " 

He further quotes with approval this from Mr. Suth- 
erland's work: 

"Not only may the meaning of words be restricted by 
the subject of the act, . . . but for like reason they 
may be extended. . . . The intention of the act will 
prevail over the literal sense of its terms. . . . The 
particular inquiry is, not what is the abstract force of 
the words used, but in what sense were they intended 
to be used as found in the act? This sense is to be col- 
lected from the context, and a narrower or more extend- 
ed meaning according to the intention thus enacted.'* 

We think, in the light of these authorities^ the clear 
intent of the legislature appearing, the statute must be 
construed so as to apply the exceptions we have specially 
mentioned to all cases appealed from trial courts of this 
State. The majority of the court, however, are of the 
opinion that the reasons upon which we are brought to 
this conclusion do not apply to the exception of cases 
involving more that tl,000, and that, therefore, in all 
suits brought up from circuit and common-law courts 



11 Gates] SPECIAL SEPTEMBEB TEBM, 1907. 833 

Railroad v. Byrne. 

of the State, not coming within the other four classes 
mentioned, the court of civil appeals has primary ap- 
pellate jurisdiction to review the judgments of those 
courts. 

Mr. Justice Neil and the writer of this opinion do not 
concur with the majority in the distinction here made 
between the five exceptions to the jurisdiction of the 
court of civil appeals contained in the statute. We 
think all the exceptions were intended to apply to all 
cases brought up from trial courts for review, and that 
no such distinction can logically be made. 

While cases involving the constitutionality of statutes, 
questions of State revenue, contested elections, and land 
titles are of greater public importance, and stronger 
reasons exist for their review by direct proceedings in 
error by the court of final resort than those involving 
mere sums of money, yet the legislature, in limiting the 
jurisdiction of the court of civil appeals, haB classed 
them all together. The legislature unquestionably had 
the power to do this. The reason for this classification 
is immaterial. It must be presumed that it waB a 
sound one. It may have been because cases of this 
magnitude are generally appealed to this court, and it 
would serve no good purpose to have them pass through 
an intermediate appellate court. We can see no good 
reason why four of the five exceptions made in the 
statute should be carried forward into and held to limit 
the law jurisdiction of the court of civil appeals, while 
a different effect is given to the fifth. All the excep- 



884 TENNESSEE EEPORTS. [119 Teim. 

Railroad r. Byrne. 

tions appear in the same sentence^ and have the same 
connections with the other parts of the jurisdictional 
provisions of the statute, and the words supplied or 
transiKMsed, necessary to extend one of them, apply witii 
equal force to all of them. We find nothing in the 
statute expressive of the legislative intent that there ^ 

should be any distinction in the jurisdiction conferred i 

by this section in any case because of the court in 
which it was originally brought. The construction that 
we have given the statute makes all of its provisions 
ui>on the subject of jurisdiction harmonious and con- 
sistenty and maintains uniformity in the jurisdiction 
of both appellate courts. We believe the same legisla- 
tive intent exists as to all the exceptions made, and 
that they must all be treated alike. There is, in our opin- 
ion, no recognized rule of statutory construction upon 
which we can hold otherwise. 

For these reasons we dissent from the opinion of the 
majority upon this point. 

The writer of this opinion, while not dissenting from 
the conclusion of the majority upon which the motion 
of the parties to have this case here docketed and tried 
is sustained, is of the opinion that that is not the true 
and sound ground upon which the decision of the court 
should be rested. The act of 1907, conferring limited 
appellate jurisdiction upon the court of civil appeals, 
is not, in his opinion, effective to deprive this court 
of any part of the jurisdiction which had been conferred 
upon it by previous statutes, or to restrict the right 



11 Gates] SPECIAL SEPTEMBER TEBM, 1907. 335 
Railroad ▼. Byrne. 

of litigants to invoke it by the ordinary proceedings in 
error. In other words, the jurisdiction conferred upon 
that court is not exclusive, but concurrent. The ju- 
risdiction of an established court is not affected by a 
statute conferring the same jurisdiction upon another 
court, unless the purpose that the jurisdiction conferred 
shall be exclusive in the latter court be expressed in 
clear and unmistakable terms. This is a well-settled 
principle applicable to the jurisdiction of courts. 

In Lewis' Sutherland on Statutory Construction, sec- 
tion 569, the rule is stated in these words: 

'*When the jurisdiction is once granted, it will not 
be deemed taken away by a similar jurisdiction being 
given to another tribunal. In Commonwealth v. Hudr 
son, the question was whether a grant of certain juris- 
diction to justices of the peace affected that previously 
existing in the court of common pleas over the same 
subject. Shaw, 0. J., said : ^Before this statute the 
court of common pleas had jurisdiction over this matter. 
Is that jurisdiction taken away? It is no answer to 
say that another tribunal has jurisdiction, for that is 
very common. It is, in such a case, concurrent juris- 
diction, whether so called in the statute or not. There 
must be words of limitation to take it away, either by 
using the word "exclusive,'' or by repealing the former 
act giving jurisdiction^ by which it may appear that 
the legislature meant, not only to confer jurisdiction 
upon justices of the peace, but to take away the other 
jurisdiction.' Only express words, or what is equiva- 



336 TENNESSEE BEPOBTS. [119 Tenn. 

Railroad v. Byrne. 

lent, can take away the jurisdiction of the superior 
courts. This principle applies, not only to the court's 
original, but to its appellate, jurisdiction and its cus- 
tomary modes of exercising them. Statutes which de- 
prive a court of jurisdiction are strictly construed, 
while those which extend its jurisdiction are liberally 
construed," 

In Delafield v. State of Illinois, 2 Hill (N. T.), 164, 
this is said : 

"There is nothing in the nature of jurisdiction as ap- 
plied to courts which renders it exclusive. It is not 
like a grant of property, which cannot have several 
owners at the same time. It is a matter of common 
experience that two or more courts may have concurrent 
powers over the same parties and the same subject- 
matter. Jurisdiction is not a right or privilege belong- 
ing to a judge, but an authority or power to do justice 
in a given case when it is brought before him. There 
is, I think, no instance in the whole history of law 
where the same grant of jurisdiction to a particular 
court, without any words of exclusion, has been held 
to oust any other court of the powers which it before 
possessed. Creating a new forum with concurrent ju- 
risdiction may have the eflPect of withdrawing from the 
courts which before existed a portion of the cases 
which would otherwise have been brought before them; 
but it cannot aflfect the power of the old courts to ad- 
minister justice when it is demanded at their hands.'' 

In Tackett v. Vogler, 85 Mo., 480, it is said : 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 337 
Railroad y. Byrne. 

''Where a court originally possesses jurisdiction over 
a subject, a subsequent legislatiye enactment giying 
another court jurisdiction over the same subject, but 
containing no express words excluding the jurisdiction 
of the former court or repealing the statute conferring 
jurisdiction on that court, does not divest it of juris- 
diction.^ 

In First National Bank v. Treasurer of Lucas County 
<C. C), 25 Fed., 749, we And this: 

''So, too, it is a general rule of law that in all these 
•cases of special tribunals their jurisdiction is strictly 
•confined, and never excludes the court of ordinary ju- 
risdiction, except upon the clearest direction of the 
l^islative will." 

In Cook V. State National Bamlc of Boston, 52 N. Y., 
"96, 11 Am. Rep., 672, Church, 0.. J., in sustaining the 
jurisdiction of the court to try the case, the objection 
to it being that it had been conferred on another court, 
fiaid: 

"There are no words of exclusion in the act, and it 
is a general rule as to all jurisdiction that to confer it 
upon one court does not operate to oust other courts 
before possessing it, for the reason that concurrent ju- 
risdiction is not inconsistent.'' 

The consensus of judicial opinion, federal and State, 
is to the same effect. Starr v. Trustee, 6 Wend. (N. Y,), 
566; Commonwealth v. Hudson, 77 Mass., 64; Tritt v. 
Bize, 51 Ga., 494; Court icright v. Bear River, etc., Min- 



338 TENNESSEE BEPORTS. [119 Tenn. 

Railroad v. Byrne. 

ing Co., 3Q Cal., 580; McGhee v. State, 2 Lea, 625; Tay- 
lor V. Pope, 5 Oold., 414. The question arose in this 
last case in this way: Previous to May 26, 1866, the 
jurisdiction of justices of the peace in replevin cases 
was limited to the property of the value of f50, and in 
all other cases jurisdiction was vested in the circuit 
court The legislature then i>assed an act conferring 
jurisdiction on justices of the peace in cases where the 
property sought to be replevined was of the value of 
1250. It was insisted that the effect of this act was to 
take away from the circuit courts jurisdiction in sim- 
ilar cases. This court held this contention to be un- 
sound, and that the jurisdiction conferred upon justices 
of the peace was not exclusive, but concurrent. 

It is also held that a statute providing new methods 
for the review of judgments of inferior courts does not 
abolish • those already existing; the new ones being 
simply cumulative. Fisher v. Baldridye, 91 Tenn., 418, 
19 S. W., 227; Peck v. Hapgood, 10 Mete. (Mass.), 
172. 

The act of 1907 contains no words making the juris- 
diction conferred upon the court of civil appeals ex- 
clusive in that court; nor is there any provision in that 
or any other statute repealing the statutes that confer 
similar jurisdiction upon this court. The general re- 
pealing clause of the statute is not effective for that 
purpose. Turner v. State, 111 Tenn., 607, 69 S. W., 
774. Nor are these statutes repealed by implication. 



11 Gates] SPECIAL SEPTEMBER TERM, 1907. 339 
Railroad v. Byrne. 

There is no irreconcilable conflict between them and 
the one in question. 

Concurrent jurisdiction, original and appellate, is 
not a novelty, but very common in our system of juris- 
prudence. It has been vested in several courts. Justices 
of the peace and circuit and chancery courts have vejy 
extensive and important concurrent jurisdiction. There 
are cases in whicli the circuit and chancery courts have 
concun*ent appellate jurisdiction with this court of ap- 
peals from judgments of the county courts, with final 
jurisdiction in this court, as under this act. 

There is no repugnancy between the statute confer- 
ring appellate jurisdiction upon the court of civil ap- 
peals and that vesting it in this court. Appellate ju- 
risdiction to review judgments and decrees of trial 
courts can consistently exist in both courts under these 
statutes, with final revisory jurisdiction in the supreme 
court. Proceedings in error, where the jurisdiction is 
concurrent, may be taken to either of them at the op- 
tion of litigants, and the purpose of the act in question 
thus accomplished. 

The majority of the court, however, ^re of the opinion 
that it is not now necessary to decide whether the ju- 
risdiction of the two courts is concurrent, and this ques- 
tion is not determined. 

We are therefore of the opinion, for the reasons con- 
curred in by the majority; that this court has juris- 
diction of this case, and the parties have a right to have 
it here tried and determined ; and it is so ordered. 



CASES 

ARGUED AND DETERMINED 

IM THE 

SUPEEME COijET OF TENNESSEE 

FOR THE 

EASTBBN DIVISION. 



KNOXVILLE. SEPTEMBER TERM, 1907. 



J. C. ROGBBS V. MlLLABD ATBBS. 

{KnoxviUe. September Term, 1907.) 

1. BZBIEFTIOH FBOM BBBT. Bemoval of property from State 
operates as lelection of it as exempt, when. 
A debtor's removal of his property from this State to another 
State for the purpose of ayolding the payment of a debt and his 
failure to turn It over under an execution in place of the prop- 
erty leyied on within this State operates as a selection of the 
removed property as his exempt property. 

Cases cited and approved: Robinson v. Myers, 3 Dana (Ky.), 
441, 442; Loan & Trust Co. v. Crabb, 45 Fla.. 306. 

S. 8AMB. Biffht to select property levied on as exempt by sul^ 
stituting other property, when. 
When property levied on belongs to a class in which there is a 
certain number exempt from levy for debt, the owner is en- 
titled to select his exempt property from the property levied 
on, by substituting other property of the same kind owned by 
him. (Post, p. 846.) 

Case cited and approved: Pyett v. Rhea, 6 Heisk., 187. 

340 [119 Teim. 



11 Gates] SEPTEMBEB TERM, 1907. 341 

Rogers t. Ayers. 

8. WBITTBN FINDZHOS OF FAOT. Additional fta^ngm re- 
quested after drcuit Judge makes written findings under request. 

Where the circuit judge trying a case without a jury makes a 
written finding of facts under a request therefor, a i>arty may» 
after such finding is made, properly request certain additional 
findings to be made. {Post, pp. 342, 843, 34*5, 348.) 

Case cited and approved: Hinton y. Insurance Ck>., 110 Tenn., 
118. 

4. 8AMB. flame. Bridence reviewed by supreme court where 
request for additional findings is made and refused. 
Where proper requests for additional written findings of fact are 
made after a written finding of tacts is made, under request 
therefor, by the circuit judge trying a case without a jury, and 
improperly refused, the supreme court may review the evidence 
at large, when other material facts are found in the record not 
included in the findings made. {Post, p. 848.) 

Case cited and approved: Hinton v. Insurance Co., 110 Tenn., 
129. 



FROM CAMPBEU4. 



Api)eal in error from the Circuit Court of Campbell 
County to the Court of Civil Appeals, and Certiorari 
from Court of Civil Appeals.— G. Mc. Henderson, 
Circuit Judge. 

BOGEBS & BOOEBS and H. K. Tbammell^ for Rogers. 

PlOKUB, TUBNEE & KENNEDY, and JOHN JENNINGS, jB.r 

for Ayers. 



S42 TENNESSEE REPORTS. [119 Term. 

Rogers t. Ayers. 

Mb. Justice Neil delivered the opinion of the Court 

This was an action of replevin, brought originally be- 
fore a justice of the peace of Campbell county, for a 
horse and mule, which had been taken by defendant in 
error from the plaintiff in error, under an execution in 
favor of one L. P. Smith. 

From the judgment of the justice of the peace an ap- 
peal was prayed to the circuit court of the county, and 
there the case was tried by the court without the inter- 
vention of a jury. 

At the request of the defendant in error the court be- 
low made a written finding of facts substantially as fol- 
lows: 

That the horse and mule replevied were found by the 
levying officer and levied on in Jellico, Tennessee, and 
were the only horse stock of any kind that plaintiff in 
error had within the State; that plaintiff in error was 
not present when the levy was made, but on his return, 
when he learned that a levy had been made, he claimed 
the animals as exempt and demanded their restoration; 
that plaintiff in error was a resident and citizen of 
Jellico, Tennessee, and was the head of a family ; that in 
additioi) to the animals levied on he owned two small 
mules, known as ^^bank mules," such as are used in coal 
mines, but these mules were in Kentucky at the time the 
levy was made upon the other animals, and had been 
almost continuously at work in plaintiff in error's coal 
mine in that State; that these bank mules were kept 
at work in the Kentucky mine, and, when not actually at 



11 Gates] SEPTEMBEE TERM, 1907. 343 

Rogers y. Ayers. 

work, were kept in a stable or bam at the mine, and 
were never kept in Tennessee, or used for hauling or 
other work in Tennessee; that these bank mules were 
still in Kentucky when the plaintiff in error demanded 
the return of the animals levied on; that plaintiff in 
error was accustomed to use the animals levied on in 
hauling coal and other articles in the city of Jellico. 

On these facts the circuit judge rendered a judgment 
in favor of the plaintiff in error. 

On the trial in the circuit court, after the facts 
above mentioned were found, the defendant in error ask- 
ed the circuit judge to make the following additional 
findings : 

"(1) That plaintiff, J. 0. Rogers, fraudulently re- 
moved his property to Jellico, Kentucky, from his res- 
idence in Jellico, Tennessee, shortly prior to the issu- 
ance and levy of the execution in this case, and that said 
Rogers removed his property as aforesaid for the pur- 
pose of evading payment of the judgment on which the 
execution was issued and levied on the mare and mule 
in controversy. This request is based upon the testi- 
mony of J. 0. Rogers, the plaintiff, given on his cross- 
examination. 

"(2) That plaintiff, J. 0. Rogers, moved his bam, 
or, rather, rebuilt his barn, across the State line in Jel- 
lico, Kentucky, and stabled all his horse stock in Ken- 
tucky, and does now, after the suit was instituted in 
which the judgment on which the execution levied on 
the mare and mule in controversy was issued; that 



344 TENNESSEE REPORTS. [119 Tenn. 

Rogers t. Ayers. 

Roge^s^ barn m Tennessee was burned on April 24^ 
1905; that L. P. Smith instituted suit against Rogers in 
June, 1905, and after August 1, 1905, Rogers built his 
barn in Kentucky, where he has ever since, and does 
now, keep his four head of horse stock, the mare and 
mule in controversy, and the two small bank mules, 
Trank' and a white mule. This request is based on 
the testimony of L. P. Smith and J. C. Rogers, the 
plaintiff. 

"(3) That prior to the levy of the execution in 
question, and after the afi^mation of the judgment in 
the supreme court, by defendant, Millard Ayers, on the 
mare and mule in controversy, plaintiff, J. C. Rogers, 
frequently rode, in a run, his bank mule, Trank' in Jel- 
lico, Tennessee; but that since said levy plaintiff, Rog- 
ers, has kept said mule Trank' in Kentucky. This re- 
quest is based upon the testimony of J. C. Rogers and 
L. P. Smith. 

"(4) That plaintiff, Rogers, operates a coal mine in 
Jellico, Kentucky, which mine is about five hundred or 
six hundred feet across the State line between Tennes- 
see and Kentucky; that in this mine Rogers works his 
two small bank mules, and from this mine he works the 
mare and mule in controversy in hauling coal into Ten- 
nessee to his customers, and to be loaded on cars in the 
city of Jellico, Tennessee, for shipment. 

"(5) That plaintiff, J. C. Rogers, failed to bring 
the two small bank mules in his possession at the time 
of the levy, and tender them, and offer to exchange them 



11 Gates] SEPTEMBEB TERM, 1907. 345 

Rogers y. Ayers. 

for the mare and mule in controversy; that, in claim- 
ing the mare and mule levied on as exempt, Bogers 
never offered the officer, Millard Ayers, the two small 
mules in exchange for the mare and mule claimed aa 
exempt." 

The circuit judge declined to make these additional 
findings. 

The case-was appealed to thecourtof civilappeals, and 
there tried, resulting in a judgment in favor of the de- 
fendant in error, and from this judgment the case wa& 
brought to this court upon certiorari. EIrrors were 
assigned here by the plafutiff in error upon the decision 
of the court of civil appeals, and the defendant in error 
renewed here his objections to the findings of the circuit 
judge. 

As to the matters covered by the first request, the 
testimony shows that the plaintiff in error's piano was 
moved into Kentucky to avoid its subjection to the 
judgment of Smith. This request, as bearing upon the 
bank mules, will be disposed of later, in stating our 
general coQclusion from all the evidence. 

The matters stated in the second request are found in 
the evidence. 

As to the matters contained in the third request, it 
is shown in the evidence of the plaintiff in error that he 
frequently rode the mule "Prank" in a run into Jellico. 
This was before the execution was issued, but whether 
it was after the judgment of the supreme court does not 
appear clearly. We think, however, it may be inferred 



346 TENNESSEE REPORTS. [119 Tenn. 

Rogers v. Ayers. 

that it was after the affirmance of the judgment, and be- 
fore the issuance of the execution. 

The matters contained in the fourth and fifth requests 
are found in the evidence. 

Prom the additional facts found taken in connection 
with those found by the circuit judge, we cannot resist 
the conclusion that the plaintiff in error built his bam 
in Kentucky, and kept the bank mules over thare, for 
the purpose of evading the payment of the Smith debt. 
We are of the opinion that the act of the plaintifF in av 
ror in so removing the two small bank mules out of 
Tennessee into Kentucky, and keeping them in the lat- 
ter State, and his failure to turn them over under the 
execution, in place of the animals levied on, must be 
regarded as a selection of these mules as his exanpt 
property. Of course, when the horse and mule were 
levied on, the plaintifF in error had the right to select 
these latter animals as his exempt property; but it be- 
came his duty to put other property of the same kind in 
their place, if he had it Pyett v. Rhea, 6 Heisk., 
187. It would not do for him to say that he 
could not place the other two mules under the execution 
in lieu of the live stock levied on, on the ground that the 
said other mules were in Kentucky, as stated. Having 
removed them into the latter State for the purpose of 
Avoiding the payment of the debt, he must be treated as 
having selected those mules as his exempt property/ Ii\ 
Robinson v. MyerSy it was said : "The fourth provis- 
ion in the general execution statute of 1828 (1 St Law, 



11 Gates] SEPTEMBEB TEEM, 1907. 347 

Rogers v. Ayers. 

641), whether interpreted according to its letter or to its 
obvious policy, should be understood as intended to se- 
cure to every housekeeper with a family against 
the claims of judgment creditors, the use of 
only one work beast. If he has more than one, 
and for the purpose of eluding his creditors, 
or for any other purpose, sends all except one 
beyond the limits of his county, or even this State, he 
cannot be entitled to the exemption of the only one left 
at home, because he would then have more than one 
which he might use, and the statute only intended to se- 
cure to him the right to use one; and though an execu- 
tion debtor, owning more than one work beast subject 
to the execution, may elect which one he will keep, yet, 
if one of them only be within reach of the excution, he 
cannot defeat the creditor's levy on that one, by electing 
to keep it, whilst he retains the right to control and en- 
joy the use of another, which he will not substitute un- 
der the execution ; for if he could do so a beneficent stat- 
ute, enacted for his protection, might be prostituted as 
an engine of fraud and evasion, and thus perverted to 
ends altogether inconsistent with its spirit and policy. 
As, therefore^ the facts in this case conduced to prove 
that the plaintifF had a work beast which he had carried 
to Tennessee, and there left, subject to his control at any 
time, the verdict and judgment in favor of the defend- 
ants, in this action of trespass, for selling under ex- 
ecution the only work beast belonging to him in this 
State, was not without evidence, or contrary to law, and 



348 TENNESSEE BEPORTS. [119 Tenn. 

Rogers y. Ayers. 

should not therefore be disturbed." 8 Dana (Ky«), 441, 
442. Likewise, in the recent case of Fla. Loan d Trust 
Co. V. Crabby it was held that concealment or removal 
beyond the reach of his ^creditors of part of his personal 
property by a defendant in an attachment proceeding, 
as a preliminary to claiming his right of- exemption, 
would, where the property remained concealed, be treat- 
ed as a selection pro tanto by the debtor of his exemp- 
tion. 45 Fla., 306, 33 South., 523. 

We think both of these decisions are supported by 
sound reason and common sense. 

That the counsel for defendant in error acted correct- 
ly in making application for additional findings is ap- 
parent from the rules laid down in Hinton v. Insurance 
Co., 110 Tenn., 113, 72 S. W., 118; and that we may, 
ui>on such requests made, review the evidence at large, 
when other material facts are found in the record not in- 
cluded by the circuit judge, is apparent from the same 
case. See page 129 of 110 Tenn., and page 121 of '72 
S. W. 

It results that there is no error in the judgment of the 
court of civil appeals, and it is affirmed. 



11 Gates] SEPTEMBEB TERM, 1907. 349 

Bryan v. Railroad. 

J. H. Bbyan^ Administrator, v. Norfolk & Western 
Railway C!ompany. 

(Knowville. September Term, 1907.) 

1. ATTAOHMSHT. Motion to quMh* lor «|yp«r«&t dcfoot; pl«a 
in alMitement lor defect not apparent. 
Where a defect appears on the face of the attachment, it is not 
necessary that the legal question should be raised hy a plea In 
abatement ; but in such a case the proper practice is by a mo- 
tion to quash. The plea in abatement becomes necessary only 
where the particular defect is not apparent on the face of the 
record. {Post, pp. 363, 354.) 

Code cited and construed: Sec. 6236 (S.); sec. 4217 (M. A V.); 
sec. 3476 (T. ft S. and 1858). 

Cases cited and approved: Parker v. Porter, 4 Terg., 81; Bank y. 
Fltspatrick, 4 Humph., 311; Bennett v. Avant, 2 Sneed, 162. 

9. SAMB. Kotion to quash, lor apparent defects operates as 
special appearance only, and not as a general appearance. 
A motion to quash an attachment for apparent defects made for 
the purpose of challenging the Jurisdiction of the court operates 
as a special appearance, and not as a general appearance. 
{Po$t, pp. 364, 866.) 

Case cited and approved: Lumber Co. v. Ldeberman, 106 Tenn., 
163. 

8. SAKB. Sama Motion to quash, for failure of affidavit to 
aver removal of property from the State of the common resi- 
dence of the parties ta be fraudulent. 
In a suit by original attachment Instituted in our courts by a 
nonresident against a nonresident, both parties being residents 
of the same State, to recover damages for a wrongful death, a 
motion to dismiss or quash the attachment, on the ground that 
the affidavit therefor did not aver that defendant's property 
had been fraudulently removed to this State to evade the pro- 



350 TENNESSEE BEPORTS. [119 Tenn. 

Bryan v. Railroad. 

cess of law In the State of their common residence, does not 
operate as an appearance. {PosU PP- 852, 858, 854.) 

4. SAKE. Filing petition to remove cause to federal court, and 
withdrawing same does not operate as a general appearance. 

The defendant, having the acknowledged right to make a special 
appearance for the purpose of filing a "petition for the removal 
of the cause to the federal court, might properly appear and i 

withdraw that petition without being charged wlUi a general | 

appearance. (Past, p. 866.) 

Cases cited and approved: Freldlander v. Pollock, 5 Cold., 491; 
Railroad v. Brow, 164 U. S., 271. 

5. SAMB. Quashing original attachment operates as dismissal 
of suit. 

There is no error in dismissing a suit by original attachment if 
the attachment is properly quashed, because the effect of quash, 
ing the original attachment is to deprive the court of any Juris- 
diction over the person of the defendant, the inevitable conse- 
quence of which is the dismissal of the suit. (Post, pp. 366, 
357.) 

Case cited and approved: Harris v. Taylor, 8 Sneed, 539. 

6. SAMB. Quashing ancillcury attachment does not operate as 
dismissal of suit. 

The rule in the last headnote is not applicable in the case of an 
ancillary attachment, for the reason that such attachment is not 
the leading process; it does not bring the defendant into court; 
its only office is to hold the property attached under it for the 
satisfaction of the plaintiff's demand, and quashing the same 
does not abate the suit {Post, pp. 856, 857.) 

Cases cited and approved: Robb v. Parker, 4 Heisk., 59; Tem- 
pleton V. Masofi, 107 Tenn., 631. 

7. AFPEAIj. Beview of error involving Jurisdiction without 
assignment of error, when. 

Though errors may not be assigned in the supreme court by the 
successful party, the court, of its motion, will review a question 
arising on the Jurisdiction of the trial court (Post, pp. 357, 858.) 



11 Gates] SEPTEMBER TERM, 1907. 351 

Bryan y. Railroad. 

8. ATTAOHHBHT. One suing for a tort is a creditor in sense of 
statute allowingr attachment by a nonresident against a non- 
resident, when. 

The statate (Shannon's Code, section 6212), requiring as a pre- 
requisite to an attachment that a nonresident creditor shall 
swear that the nonresident debtor's property has been fraudu- 
lently removed from the State of their common domicile or resi- 
dence to this State to evade the process of law in their State, 
embraces and comprehends actions by nonresidents who are 
seeking to impound property in this State for the satisfaction 
of damages claimed for a tort, and the omission of an averment 

. in the affidavit that the property sought to be attached was re. 
moved to this State to evade the process of the law in the 
State of their domicile is fatal to the validity of the attachment. 
(Post, pp. -352, 353, 858-363.) 

Code cited and construed: Sees. 3143, 5211, 5212 (S.); sees. 2424, 
4192, 4198 (M. & V.); sees. 1769, 8456 (T. & S. and 1868.); sec. 
8466a (T. ft S.). 

Acts cited and construed: Acts 1716, ch. 48, sec 9; Acts 1801, 
ch. 25, sec. 2; Acts 1870-71, ch. 122. 

Cases cited and approved: Williams v. Conrad, 11 Humph., 412, 
418; Patrick v. Ford, and Famsworth v. Bell, 6 Sneed, 632; 
Vance v. Smith, 2 Helsk, 343, 850; Merchant v. Preston, 1 Lea, 
284; Parker v. Savage, 6 Lea, 408; Taylor v. Badoux, 92 Tenn., 
261; Sanders v. Logue, 84 Tenn., 864. 

Case cited and disapproved: Langford v. Fly, 7 Humph., 686. 



FROM SULLIVAN, 



Appeal in error from the Circuit Court of Sullivan 
County. — ^A. J. Tylkr, Judge. 



352 TENNESSEE BEPORTS. [119 Tenn. 

Bryan v. Railroad. 

Habu & BUBEOW^ for Bryan. 

Page & Fulkebson and St. John & Shei/ton^ for 
Bailroad. 



Me. Justice MgAustee delivered the opinion of 'the 
•Oonrt 

This is a suit by original attachment to recover dam- 
ages for the alleged unlawful killing of one Harry Lee 
Patton, who was employed by the defendant company 
in the capacity of brakeman and lost his life in a collis- 
ion near Hull, in the State of Virginia. The suit was 
brought by the administrator of the deceased, and a writ 
of attachment was levied on four passenger coaches be- 
longing to the defendant company and impounded in the 
town of Bristol, Tennessee. It appears from the record 
that both the plaintiff and defendant are residents of 
the State of Virginia, and it does not appear that the 
deceased ever resided in the State of Tennessee, or left 
any assets in this State. It appears that on the 25th of 
April, 1906, during the vacation of the court, a petition 
was filed on behalf of the Norfolk & Western Railway 
Company to remove the cause to the United States court. 
Prior to any action on the petition, it was voluntarily 
withdrawn by the defendant company. When the r^u- 
lar term of the court was convened on the third Monday 
in May, 1906, a motion was interposed on behalf of the 
railroad company to dismiss the attachment, on the 



11 Gates] SEPTEMBER TERM, 1907. 353 

Bryan y. Railroad. 

ground that the affidavit therefor did not aver that the 
property of the defendant in Tennessee had been fraud- 
ulently removed to this State to evade the process of law 
in the State of Virginia. This motion was overruled 
by the trial judge. It appears that on the 24th of May, 
1906, another motion was made on behalf of the rail- 
road company to quash the original attachment herein 
for the following reasons: (1) The affidavit is insuf- 
ficient, in that it does not state that Henry Lee Patton, 
for whom J. H. Bryan sues as administrator, either died 
in the State of Tennessee or left assets or property in ^ 

this State, and therefore has no right to prosecute a suit 1 

on the pauper's oath. (2) Because an original attach- i 

ment for a tort cannot be issued upon the pauper oath. ; 

The trial judge sustained both grounds of the motion, | 

quashed the attachment, and dismissed the plaintiff's | 

suit. * ' 

The first assignment of error is that the court erred in 
<lismissing the plaintiff's suit, because the motion was 
only to quash the attachment. It is insisted that, if the , 

attachment was properly quashed, it did not necessarily ; 

follow that the whole suit should be dismissed on that i 

account. 

The contention on behalf of the plaintiff in error is 
that the defendant company had entered its appearance 
before the motion to quash the attachment i^'as made, 
and that the quashing of the attachment was a mere in- 
cident of the suit, and did not touch the merits of the 

119 Tenn. — ^23 



354 TENNESSEE REPORTS, [119 Tenn. 

Bryan ▼. Railroad. 

controversy. The position of the plaintiff in error i» 
that, when the motion was made on behalf of the com- 
pany to dismiss the attachment because the affidavit did 
not aver that the property of the company in Tennessee 
had been fraudulently removed to this State to evade the 
process of law in the State of Virginia, the company 
thereby entered its appearance in this suit, and more 
especially when it afterwards appeared and asked leave 
to withdraw the petition. 

We are of opinion this contention is not sound. The 
fact that a motion to dismiss was made, and not a plea 
in abatement filed, would not affect this question. When 
a defect appears on the face of the attachment, it is not 
necessary that the legal question should be raised by a 
plea in abatement ; but in such a case the proper practice 
is a motion to quash. The plea in abatement become* 
necessary only where the particular defect is not ap- 
parent on the face of the record. Shannon's Code, sec- 
tion 5236, note 1; Bennett v. Avant, 2 Sneed, 152; Par- 
ker V. Porter, 4 Yerg., 81; Bank v. Fitzpatrick, 4 
Humph., 311. 

It is very obvious that both motions on behalf of the 
defendant company to quash the attachment were made 
for the purpose of challenging the jurisdiction of the 
court, and the appearance of the company was only spec- 
ial, and not a general, appearance. 

In Lumber Co. v. Liehermunj 106 Tenn., 153, 61 S. W.,. 
70, it appears that an order pro confesao had been taken 
against the defendants, which, on their motion, was set 



11 Gates] SEPTEMBER TERM, 1907. 355 

Bryan y. Railroad. 

aside by the chancellor, and the defendants allowed to 
file a plea in abatement. There was a motion to strike out 
the plea, because (1) defendants had permitted a pro 
confcsso to be taken and thereby submitted to the juris- 
diction of the court; (2 J they had entered their ap- 
pearance to make the motion and thereby submitted to 
the jurisdiction, etc. The court held that entry of ap- 
pearance was simply for the purpose of contesting the 
jurisdiction, and not for trial on its merits, and was not 
a submission to the jurisdiction. 

In Friedlander v. Pollock, 5 Cold., 491, it was held 
that an application to remove a cause to the federal 
court was not such an appearance as would debar the 
defendant the right of putting in issue the ground of 
the attachment. 

So in Wahash Western Railway v. Brow, 164 U. S., 
271, 17 Sup. Ot., 126, 41 L. Ed., 431, it was held that the 
filing of a petition for removal does not amount to a 
general appearance, but to a special appearance only. 

Again, it is insisted that, when counsel appeared for 
the defendant and moved for leave to withdraw the pe- 
tition for removal, that act amounted to a general ap- 
pearance. It is said the defendant, in filing its petition 
for removal, was pursuing the federal statute, and it is 
practically conceded that this appearance for that pur- 
pose was special ; but it is said the defendant, before the 
petition had been acted on, again appeared in court by 
attorney and withdrew it. It is argued this was not 



356 TENNESSEE REPORTS. [119 Tenn. 

Bryan y. Railroad. 

done in pursuance of any federal statute, but was a vol- 
untary abandonment of a right under that statute, and 
amounted to a voluntary appearance. We do not think 
this contention sound. The defendant company, hav- 
ing the acknowledged right to make a special appear- 
ance for the purpose of filing a petition for the re- 
moval of the cause to the federal court, might properly 
appear and withdraw that petition without being 
charged with a general appearance. It was at last an 
appearance for a special purpose, whether for the filing 
of the petition for removal in the first instance or the 
withdrawal of that petition in the last instance. 

There was no error in dismissing the plaintiff's suit, 
if the original attachment was properly quashed. The 
nature of the original attachment is thus explained in 
Hwriis v. Taylor, 3 Sneed, 539, 67 Am. Dec, 576, as fol- 
lows: 

''In the present situation of the law, the attachment 
is a proceeding, not only to enforce the appearance of 
the defendant, but to obtain security for the plaintiff's 
demand. For the purpose of bringing the defendant into 
court, it is substituted for ordinary wTit or summons 
and the seizure of the defendant's property by attach- 
ment stands in place of personal service, so far as to 
give jurisdiction to the court to proceed to render judg- 
ment in the case. Being the leading process by which it 
is sought to compel an appearance, the defendant, upon 
appearing, may plead in abatement, as if brought into 
court upon ordinary process. He may traverse and dis- 
prove the truth of the cause stated as the ground of at- 



11 Gates] SEPTEMBER TERM, 1907. 357 

Bryan v. Railroad. 

tachinent. And, as it is alone by seizure of his property 
that the court can acquire jurisdiction of his i)erson, he 
may show in abatement of the attachment, . . . 
and therefore that he is not before the court." 

The effect, therefore, of quashing the original attach- 
ment, is to deprive the court of any jurisdiction over the 
person of the defendant, and thus the inevitable conse- 
quence is the dismissal of the suit. This is not so as to 
an ancillary attachment, for the reason that in such 
cases the attachment is not the leading process, and 
quashing the attachment does not abate the suit. Rohh 
V. Parker, 4 Heisk., 59. 

At law an ancillary attachment is sued out in aid 
of a suit already brought. Its only ofllce is to hold the 
property attached under it for the satisfaction of the 
plaintiff's demand. It does not bring the parties into 
court. Templeton v. Mason, 107 Tenn., 631, 65 S. W., 
25. 

The next question arising is whether the original at- 
tachment herein was properly quashed. 

In our opinion the trial judge was in error in not sus- 
taining the first motion submitted on behalf of the de- 
fendant company. The cause assigned was that the af- 
fidavit for the attachment failed to aver that the prop- 
erty of the company in Tennessee had been fraudulently 
removed to this State to evade the process of law in the 
State of Virginia. This is a jurisdictional question, and, 
although errors may not be assigned in this court by the 
successful party, this court, of its own motion, will re- 



358 TENNESSEE BEPOBTS. [119 Tenn. 

Bryan y. Railroad. 

view a question arising on the jurisdiction of the trial 
court It is provided by section 5212 of Shannon's 
Code as follows: 

**When the debtor and creditor are both non-resi- 
dents of this State and residents of the same State, the 
creditor shall not have attachment against the property 
of his debtor, unless he swear that the property of the 
debtor has been fraudulently removed to this State to 
evade the process of law in the State of their domicile or 
residence/' 

As already seen, the affidavit upon which this attach- 
ment was sworn out wholly omitted this jurisdictional 
averment. It is said, however, on behalf of the plaintiff, 
that this statute is inapplicable in the present case, for 
the reason that it applies alone to an attachment by a 
creditor against a debtor, and does not embrace an act- 
ion of tort to recover damages for personal injuries. 
What, then, is meant by the terms "creditor" and "debt- 
or," as employed in section 5212 of Shannon's Code? 
We have several cases in which the term "creditor," as 
used in the statute against fraudulent conveyances (sec- 
tion 3143, Shannon's Code), has been defined. 

In Langford v. Fly, 7 Humph., 585, it was held that a 
party who has a right of action for a tort, as for slander, 
"cannot be deemed a creditor within the meaning of Acts 
1801, c. 25, section 2, until ,he obtains a judgment, etc. 
The wrongdoer is in no sense a debtor by reason of the 
wrong until the judgment of the court shall fix upon him 
a pecuniary burden for the redress of the wrong." 



11 Gates] SEPTEMBEB TERM, 1907/ 859 

Bryan y. Ballroad. 

The above case was modified by a subsequent ruling 
in the case of Patrick, Adm/r, v. Ford et dl., cited in 
note to Fariistcorth v. Bell, 5 Sneed, 532. In that case it 
was held (1) that a conveyance of property to defeat 
an expected recovery in an action of tort is fraudulent 
and void, as well at common law as under the statute of 
frauds of 1801 (Acts 1801, c. 25, section 2) ; (2) the 
term "creditor," as used in Acts 1801, c. 25, section 2, 
embraces every person having a just demand or right 
recognized by law to claim a recovery for an injury to 
person or property. In the course of the opinion Judge 
McEinney said: ^ 

"The practical importance of this question requires, 
perhaps, that the construction of the statute construed 
in the case of Langford v. Flj/, supra, as respects the 
meaning of the term 'creditor,' should be further con- 
sidered. The statute declares in substance that every 
conveyance of lands or goods made 'to the intent or pur- 
I>ose to delay, hinder or defraud creditors of their just 
and lawful actions, suits, debts, accounts, damages, pen- 
alities or forfeitures,' shall be utterly void. Now the 
question is, in what sense is the term 'creditor' to be 
understood in this connection. Is it to be taken in the 
limited and technical sense of a person to whom 'a sum 
of money is due by certain and express agreement'? 3 
Bla. Com., 154. Or is it to be understood in a more en- 
larged and less technical sense, so as to embrace every 
just demand or right recognized by law to claim a re- 
covery for an injury to person or property? In the con- 



360 TENNESSEE REPORTS. [119 Tenn. 

Bryan v. Railroad. 

struction of a statute one of the cardinal rules is that 
the words used shall, if possible, be so understood aa 
that meaning and effect shall be given to every word;, 
not so much regarding the propriety of language, as the 
obvious sense in which the words were intended to be un- 
derstood. If the word 'creditor' is to be restricted, so as 
only to include debts eo nomine and in numero, then the 
word 'damages' is rendered inoperative, as it would 
seem; there being nothing left, upon that construction,, 
for it to act upon. . . . The term 'creditor,' in Acts 
1715, c. 48, section 9, was taken in a much more compre- 
hensive sense than it technically imports, in order to- 
comply with the spirit and policy of the act. WilHama^ 
V. Conrad, 11 Humph., 412, 418. In our view, a convey- 
ance made with intent to defeat a recovery in damages 
for a breach of contract, or for a tortious act to person or 
property, is as much in contravention of the statute,, 
and equally void, as if the purpose of the deed were to 
defeat the recovery of a debt in the proper sense of the 
term. This construction has the advantage of giving ef- 
fect to all the words of the act, and of carrying out the 
obvious intentions and policy of the law." 

In Sanders v. Logue, 84 Tenn., 364, 12 S. W., 722, it 
was said as follows : 

"It is true, as we have already seen, that a plaintiff 
in an action of tort commenced is a creditor, within the 
meaning of our statute prohibiting conveyances with 
fraudulent intent to defeat creditors (5 Sneed, 532), and 
so of one in that relation that he is secured in a deed of 



If Gates] SEPTEMBER TEEM, 1907. 361 

Bryan v. Railroad. 

trust which includes *all creditors' (Vance v. Smithy 2 

Heisk., 343, 350). But, even in respect to such cred- 

t 

itor, after suit brought, it is held that his claim is not a 
debt within the meaning of our constitution prohibiting 
impairment of validity of debts,'* etc. Pa/rker v. Sav- 
age, 6 Lea, 408, 

Acts 1870-71, p. 139, c. 122 (Shannon's Code, section 
5212), is an amendment to the general attachment laws 
found at section 5211 et seq.. Shannon's Code. The 
first section of that act provides that "any person hav- 
ing a debt or demand due at the commencement of an 
action, or having a claim for damages for a tort, may 
sue out an attachment at law or in equity," etc. 

It is insisted that when the original act was amended, 
so as to permit nonresidents of this State to avail 
themselves of our attachment laws, provided the prop- 
erty of the debtor had been fraudulently removed to 
this State, etc., the amendment was limited to the debtor 
and creditor class in the strict and technical meaning of 
.those terms. The argument is that, the amendment hav- 
ing been confined to the debtor and creditor class, non- 
residents having a claim for damages for a tort are ex- 
cluded. We do not concur in this construction of the 
statute. We are not able to perceive any good reason 
why the legislature, in extending the remedy afforded 
by our attachment laws, should limit the right to non- 
residents who are creditors and debtors in the narrowest 
meaning of that term, when, as already seen, the orig- 
inal act provides for persons having a claim for damages 



362 TENNESSEE BEPOBTS. [119 Tenn. 

Bryan ▼. Railroad. 

for a tort. We are of opinion that these terms, em- 
ployed in the amendment, are to be read in the light of 
the original act, and are to be interpreted in their more 
enlarged and comprehensive signification, and as includ- 
ing nonresidents who are seeking redress in damages for 
a tort 

In Merchant v. Preston, 1 Lea, 284, it was said by this 
eourt, in considering section 5212, Shannon's Code, that : 

"Looking to the reason and policy of this act, it was 
intended to be amendatory to the whole of section 3455 
(Shannon's Code, section 5211)." 

This language was not used by Judge McFarland in^ 
connection with the precise question we are now consid- 
ering, but generally in respect of the breadth and scope 
of the amendment. 

So in the case of Taylor v. Badoux, 92 Tenn., 251, 21 
8. W., 522, this section of the Code (Shannon's Code, 
section 5212) was again under consideration, wherein 
Judge Snodgrass used this language : 

"The act of 1871 r^ulated only the general practice 
as to attachments at law or in equity, and permitted 
them in all cases where property had been fraudulently 
removed to this State from that of the residence of the 
parties to evade the process of law in the State of their 
domicile or residence. ... It is generally allowed on 
all claims and in all courts.'' 

Again we remark the last case cited did not adjudicate 
the precise point arising on the present record, but is 



11 Gates] SEPTEMBBB TEBM, 1907. 363 

Bryan v. Railroad. 

<!ited for the purpose of showing how broad the court 
•considered the act. 

Without further elaboration, we are content to hold 
that the act in question was intended to embrace and 
^oes comprehend actions by nonresidents who are seek- 
ing to impound property in this State for the satisfac- 
tion of damages claimed for a tort, and that the omission 
of an,ayerment in the affidavit that the property sought 
to be attached was removed to this State to evade the 
process of the law in the State of their domicile was fatal 
to the validity of the attachment. 

For this reason, and without noticing other questions, 
the judgment is affirmed. 



364 TENNESSEE BEPOBTS, [119 Tenn. 

Patton T. Casualty Co. 

Nelub M. Patton v. Contenental Oasualtt Company. 
{Knoxville. September Term, 1907.) 

1. INSn&AJIGE COMPAKIES. Action by nonresident agaiiiBt & 
nonresident casualty company, by service of process. , 

A nonresident of this State may prosecute a suit in our courts 
against a nonresident casualty company, lawfully doing busi- 
ness here, on a policy written outside of this State, though the 
accident and death of the insured "^both occurred in another 
State, if proper service of process Is made here. {Post, pp. 
366-375.) 

Cases cited and approved: State, ex rel., v. Telephone ft Tele- 
graph Co., 114 Tenn., 194, 200; Whitlow v. Railroad, 114 Tenn., 
344; Johnston v. Insurance Co., 132 Mass., 432; Abbeville, etc.» 
Co. V. Western, etc., Co., 85 Am. St. Rep.« 922, and citations on 
page 372; State v. LAud Co., 106 La., 621. 

8, SAKE. Acknowledgment of service of process against foreign 
life insurance company is as binding as actual service thereof^ 
Under a statute (Shannon's Code, sec. 3292, subsec. 3) requiring^ 
every foreign life insurance company doing business in this 
State to appoint the insurance commissioner its attorney, upon 
whom legal process may be served, and providing that service 
upon such officer by the proper officer of the county in which 
the commissioner may have his office shall be deemed a suffi- 
cient service on the insurance company, an acceptance or ac 
knowledgment of service of process by the insurance commis- 
sioner is sufficient to bring the company before the courts 
(Post, pp. 372-374.) 

Code cited and construed: Sec. 3292, subsec. 3 (S.). 



1 

i 



11 Gates] SEPTEMBER TEEM, 1907. 365 

Patton y. CaJsualty Co. 

•8. 8AMB. Process in suit of nonresident against nonresident 
insurance company may be senred on insurance commissioner 
nntil power is properly revoked. 
Under a statute (Shannon's Code, sec. 3292, subsec. 3) providing 
for the appointment of the insurance commissioner to be served 
with process against foreign insurance companies, and provid- 
ing "that the authority thereof shall continue in force, irrevo- 
cably, as long as any liability of the company remains outstand- 
ing in this State," the liability of the insurance company is not 
limited to suits on contracts or obligations arising in this State, 
so long as the power remains unrevoked, though it might be 
revoked, if the Insurance company had no obligations outstand- 
ing in this State. (Post, pp. 372-374.) 

Code cited and construed: Sec. 3292, subs^. 3. 

4. SAME. Policy does not lapse where premium is deposited 
according to agreement, but payment is refused by depositary 
alter death of insured; premium deducted. 
Where, in accordance with the agreement as to the method of pay- 
ment, the premiums were placed with the railroad company for 
which the insured worked, and were properly there at the time 
of the insured's death, and when the insurance company made 
demand under the agreement, but the railroad refused payment 
on the ground that the deceased insured was no longer in its 
service, though it had the money in its hands, the policy did 
not lapse, and the insurance company could claim only a deduc- 
tion of the amount of the current premiuuL (Post, pp, 366, 367» 
375.) 



FROM WASHINGTON. 



Appeal from the Chancery Court of Washington 
County.— Hal H. Haynes, Chancellor. 



366 TENNESSEE BEPOBTS, [119 Tenn. 

Patton y. Casualty Co. 
Haba & BuRBOW^ for complainant 
KiRKPATRiCK^ Johnson & Miller^ for defendant 



Mr. Justice Neil delivered the opinion of the Conrt. 

The defendant is a private corporation having its 
principal ofllce and place of business in the city of Chi- 
cago^ State of Illinois. Harry L. Patton obtained from 
defendant a policy of insurance on his life bearing date 
August 23, 1905. He was at that time a freight brake- 
man on the Norfolk & Western Eailroad, remaining in 
the service of that company in that capacity until the 
date of his death, November 10, 1905. 

The policy provided on its face for the payment of a 
v^eekly indemnity of f 10 in the event the insured should 
be injured while the contract was in force, and for the 
payment of the full amount of $1,000 in the event of the 
death of the said Harry L. Patton. 

After the death of the insured, notice was given and 
the proof required to be made by the terms of the policy 
was made and delivered to the defendant The defend- 
ant refused to pay on the ground that at the time of the 
death of the insured he was in default in the payment of 
premiums. Thereupon the present suit was brought by 
his mother, the beneficiary in the policy, claiming to be 
a resident of Tennessee. 

The defendant filed a plea in abatement and also an 
answer. 



11 Gates] SEPTEMBER TERM, 1907. 367 

Patton v. Casualty Co. 

The plea in abatement stated the following as a mat- 
ter of abatement : 

^'The complainant is not a resident of the State of 
Tennessee, nor was she at the time of filing her bill, but 
was a nonresident thereof; and defendant is a nonresi- 
dent foreign corporation, and has no local agent or offi- 
cer in Washington county. This suit is brought to col- 
lect the amount of an insurance policy, which policy 
was written beyond the limits of this Stata The in- 
surer, or this respondent, the insured, Harry L. Patton,. 
and the beneficiary, the complainant in the bill, were all 
at the time nonresidents of and beyond the limits of this 
State, and the accident which caused the death of the 
insured, Harry L., occurred in another State, and his 
death resulting there. Therefore this respondent is not 
suable in this State, and was only brought here before 
the court by sub^itute service of process on Reau E. 
Folk, insurance commissioner for this State, residing in 
Nashville, the seat of government, and respondent says 
ttat this court ought not to take further jurisdiction of 
the cause/' 

The answer filed set up as a defense substantially that 
the insured was in arrears on his premiums when the 
accident occurred, and the policy had been forfeited. 
The plea was set down for argument as to its sufficiency^ 
and was sustained by the chancellor. Thereupon the 
complainant took issue upon the plea, and an agreement 
was filed by the parties, to the effect that at the time the 
suit was brought the insurance company had been doing 



368 TENNESSEE REPORTS, [119 Tenn. 

Patton y. Casualty Go. 

business in Tennessee for more than a year, and was 
then doing business, and that it had appointed Reau E. 
Folk, the commissioner of insurance, as its agent to ac- 
cept service of process. 

Evidence was also introduced by the complainant for 
the purpose of showing that she was, at the time the suit 
was brought, a resident and citizen of Tennessee, and 
there was proof to the contrary introduced by the de- 
fendant. 

Evidence was also introduced by both sides as to the 
merits of the controversy. 

The chancellor decreed in favor of the complainant, 
rendering a judgment for |1,094, and from this judgment . 
the defendant appealed to this court and has here as- 
signed errors. 

It is insisted for complainant that when the fact was 
admitted that the defendant was doing business in Ten- 
nessee, and had appointed the insurance commissioner 
as its agent to accept service of process, the plea in 
abatement became immaterial. As we understand the 
position, it is that the plea in abatement was probably 
good upon its face, and properly sustained by the chan- 
•cellor, but that, when this new matter was brought for- 
ward under the replication to the plea, it was shown that 
Mr. Folk was properly the agent of the insurance com- 
pany, and might be served with process. 

Without passing upon the technical aspect of the mat- 
ter thus presented, we think the question is open for con-, 
sideration whether a nonresident holder of an insurance 



11 Gates] SEPTEMBER TEBM, 1907. 369 

Patton Y. Casnalty Co. 

policy may sue a foreign insurance company in this 
State, by having the insurance commissioner to accept 
service of process. 

It is observed that in this state of the question we 
have amumed that Mrs. Patton was, at the time the suit 
was brought, a nonresident of the State. In the view we 
take of the case it is unnecessary that the point shall 
be determined on the evidence. It suffices simply to 
treat her as if she were a nonresident suing. The policy 
of insurance was obtained by the insured in West Vir- 
ginia, and he was killed there. At the time it was so pro- 
cured, the mother of the insured was a resident and cit- 
izen of North Carolina. 

It has long been the custom in this State to permit 
suits against foreign companies for torts committed out- 
side of this State. Whitlow v. N. C. d St. L. Ry. Co., 
114 Tenn., 344, 84 S. W., 618, 68 L. R. A., 503, and cases 
cited. In State, ex rcl, v. Telephone & Telegraph Co., 
114 Tenn., 194, 200, 86 S. W., 390, the general proposi- 
tion is stated that the admission of a foreign corporation 
to do business in this State is a matter of comity, and 
not of right, so that, when such corporation enters the 
State and undertakes to do business here, it becomes 
amenable to our laws and subject to the jurisdiction of 
our courts, exactly as a private individual or domestic 
corporation. 

It has always been the custom in this State to permit 
suits upon contracts, regardless of the place of the cre- 

119 Tenn.— 24 



870 TENNESSEE REPORTS. [119 Tenn. 

Patton V. Casualty Co. 

ation of the contract. In 6 Thompson on Corporations, 
section 8004, after stating certain cases holding that 
suits could not be brought by nonresident persons or 
corporations against foreign corporations upon con- 
tracts made and to be performed outside of the State of 
the forum, although the foreign corporation had an 
agent in the State on whom the process might be served, 
the author said : 

"Contrary to the foregoing, there are holdings to the 
effect that when a corporation comes within the State 
for the purpose of doing business, and appoints an at- 
torney or agent on whom process against it may be 
served with like effect as if it existed in the State, it 
may be sued by nonresidents upon contracts made out- 
side of the State in like manner as a natural person may 
be sued. This view of the law enlarges the operation of 
statutes under which foreign corporations subject them- 
selves to the jurisdiction of domestic tribunals, so as to 
give such tribunals jurisdiction over them in respect to 
all actions, and for all purposes, as corporations." 

In the case of Johnston v. Trade Ins. Co., 132 Mass., 
432, referred to in the notes to the section just quoted, 
it was held that a citizen of Delaware could maintain in 
a court of Massachusetts, an action against a corpora- 
tion created under the laws of New Jersey, upon a pol- 
icy of insurance issued in Pennsylvania upon property 
in Delaware, and payable to the plaintiff as mortgagee; 
the New Jersey insurance company having complied 
with the statutes of Massachusetts entitling it to do bus- 



11 Gates] SEPTEMBER TERM, 1907. 371 

Patton y. Casualty Co. 

iness in that State, by appointing the insurance commis- 
sioner of the State its attorney, "upon whom lawful pro- 
cesses, in any action or proceeding against the com- 
pany, may be served witii like effect as if the company 
existed in this commonwealth," and being actually en- 
gaged in business within the State of Massachusetts at 
the time of the commencement of the suit. • 

In a note to Ahhcmlle, etc., Go. v. Western, etc, Co., 
85 Am. St. Rep., 922, it is said : 

•*The question of jurisdiction is not dependent on the 
cause of action arising within the State or nation in 
whose courts redress is sought,* nor upon the plaintiff's 
being a citizen or resident thereof, unless, indeed, some 
statute makes that question material and controlling. 
Therefore, if a foreign corporation has placed itself in a 
position where process issued by the courts of a State 
or nation can be lawfully served upon it, and such ser- 
vice is made within the territorial limits of the State or 
nation, its courts are competent to proceed, though the 
cause of action did not arise within its limits, unless its 
constitution or statutes prohibit, or, at least, do not sus- 
tain, such proceeding. Process having been regularly 
served upon a foreign corporation, it cannot, any more 
than when thedefendant is a nonresident natural person, 
defeat the action on the ground either that the plaintiff 
is a nonresident, or that his cause of action depends on 
a transaction occurring in another State or country ; and 
this rule is equally applicable, whether the action is for 
a tort committed, or a contract entered into, beyond the 



372 TENNESSEE REPOBTS. [119 Tenn. 

Patton Y. Casualty Co. 

jurisdiction^*— citing Williams v. Pope Mfg. Co., 52 La. 
Ann., 1417, 27 South., 851, 50 L. E. A., 816, 78 Am. St. 
Eep., 390; Johnston v. Trade Infi. Co., supra; Pullman 
Palace Car Co. v. Lawrence, 74 Miss., 782, 22 South., 53; 
Mutual Life Ins. Co. y. Nichols (Ter. Civ. App.), 24 S. 
\V., 910; United States v. Southern Pac. By. Co. (CO.), 
49 Fed., 297; Qilbert v. New Zealand Ins. Co. (C. C), 
49 Fed., 884, 15 L. R. A., 125; Den/oer, etc., R. R. Co. v. 
Roller, 41 C. 0. A., 22, 100 Fe^., 739, 49 L. R. A., 77; 
Barrow S. S. Co. v. Kane, 170 U, S., 100, 18 Sup. Ot., 526,^ 
42 L. Ed., 964. See, also, 19 Cyc, 1341, note 669 and 
cases cited; Clark on Corp. (2d Ed.), p. 630, note 126, 
and cases cited. 

Referring to our statutes which bear specially upon 
the matter in hand, it is provided, in the requisites for 
obtaining the right to do business in this State by a for- 
eign insurance company, among other things, that ^4t 
shall satisfy the insurance commissioner that it is fully 
and legally organized under the laws of its State or gov- 
ernment to do the business it proposes to transact ; that, 
if a life insurance company, it has on deposit with the 
treasurer of this State, or with the proper officer of some 
other State, securities to the actual cash value of at 
least one hundred thousand dollan^ consisting of the 
bonds of this State, the United States, or the State in 
which such company is organized, or notes or bonds 
secured by mortgages on real estate for double • the 
amount, and such companies shall file with the insur- 
ance commissioner the certificate of the official with 



11 Gates] SEPTEMBEE TERM, 1907. 373 

Patton T. Casualty Co. 

whom the securities are deposited, stating the time and 
amount of each of said bonds, notes, or stocks, and that 
he is satisfied that they are worth one hundred thousand 
dollars, and that the deposit is made with him by the 
company for the protection of all policy holders and 
creditors in the United States. It shall, by duly executed 
instrument filed in his office, constitute and appoint the 
insurance commissioner, or his successor, its true and 
lawful attorney, upon whom all lawful processes in aqy 
action or legal proceeding against it may be served, and 
therein shall agree that any lawful process against it, 
which may be served upon its said attorney, shall be of 
the same force and validity as if served on the company, 
and that the authority thereof shall continue in force, 
irrevocably, as long as any liability of the company re- 
mains outstanding in this State. Any process issued by 
any court of record in this State, and served upon such 
commissioner by the proper officer of the county in 
which said commissioner may have his office, shall be 
deemed a sufficient process on said company, and it id 
hereby made the duty of the insurance commissioner, 
promptly, after such service of process by any claimant, 
to forward, by registered mail, an exact copy of such no- 
tice to the company.^' Shannon's Code, section 3292, 
subsecs. 2, 3. 

In the present case the service of process was acknowl- 
edged by the insurance commissioner, and on the princi- 
ples already stated we are of the opinion that the service 



374 TENNESSEE REPORTS. [119 Tenn. 

Patton y. Casualty Co. 

was properly made, and the company was brought before 
the court. 

Special remark is made by counsel for the defendant 
upon the language in subsection 3, "that the authority 
thereof shall continue in force irrevocably, as long as 
any liability of the company remains outstanding in this 
State." It is argued from this provision that it was in- 
tended to limit the liability of the insurance company to 
suit on contracts or obligations arising within this 
State, We do not think this construction is sound. It 
is true that under this provision the insurance company, 
if it had no obligations outstanding in this State, might 
revoke the power of the insurance commissioner ; but so 
long as the authority remains unrevoked the insurance 
commissioner stands as the representative of the insur- 
ance company for the purpose of serving process on all 
rights of action on which the company is amenable to 
suit. The limitation is not in respect of the kinds of 
suits which may be brought, but marks only the power 
of the insurance company to revoke the agency for all 
purposes. 

The question arose in Louisiana in the case of Stdte v. 
North American Land Company, 106 La., 621, 31 South., 
172, 87 Am. St. Rep., 309-325, as to the right of a nonres- 
ident to sue upon a foreign cause of action, and it was 
held as we hold it here. 

We are of the opinion, therefore, that, even treating 
the complainant as a nonresident at the time she brought 
her suit, it might be well maintained by her if her case. 



11 Gates] SEPTEMBER TERM, 1907. 375 

Patton y. Casualty Co. 

upon the merits, be made out. 

The merits of this controversy are with complainant. 
No extended discussion is needed upon this part of the 
litigation. It is sufficient to say that we find from the 
testimony that, under the method of payment agreed 
upon between the parties, the insured had fully complied 
with his duty. The money was to be placed in the hands 
of the railway company, to which the insurance company 
was to resort for payment. The money was so placed 
before the death of the insured, and was there at the 
time he was killed. At the time of his death the pay- 
ment was not yet due, under the course of business there- 
tofore practiced between the insurance company and the 
railway company. Demand was made upon the railway 
company by the insurance company for payment of the 
premium, but the railway company had until the 24th 
of November to pay. In the meantime, on the 10th of 
the month, the insured had died. On the 24th the rail- * 
way company, although the money was then in its hands, 
refused to pay on the ground that the deceased was no 
longer in its service. The policy matured at the death 
of the insured. The rights of the beneficiary could not, 
therefore, be defeated by the condjict, just referred to, of 
the railway company. All that the insurance company 
can claim on these facts is a deduction of the amount of 
the current premium from the sum due on the policy. 
The chancellor allowed this. 

There is no error in the decree of the chancellor, and 
it must be affirmed. 



1 



376 TENNESSEE BEPOBTS. [119 Tenn. 

state, ex rel., v. Burrow. 

State, ew rel. E. Gouge, v. T.J. Buebow, CSty Becorder. 
{Knowville. September Term, 1907.) 

1. OOHSTITUnOHAIi LAW. Ftorision to be construed •• man- 
datory, nnlese contrary oondnsiTely appears. 

Constitatlonal provisions are presumptively mandatory, and no 
provision shall be construed otherwise, unless the Intention that 
it shall he so construed unmistakably and conclusively appears 
upon Its face. (Post, pp. 881-388.) 

Constitution cited and construed: Art 2, sees. 17-21. 

Cases cited and approved: Cannon v. Mathes, 8 Heisk., 616; 
Morrell v. Fickle, 8 Lea, 79; StiLto v. McCann, 4' Lea, 1; Manu- 
facturing Co. V. Falls, 90 Tenn., 482; State v. Tardley, 95 Tenn., 
652; Telegraph Co. v. Nashville, 118 Tenn., 1, and cases from 
other States to be found on pages 382 and 388. 

2. SAME. Same. Provision as to style of enactin|^ clause of 
laws is mandatory. 

The constitutional provision that "The style of the laws of this 
State shall be, "Be it enacted by the general assembly of the 
State of Tennessee," is mandatory, and must be complied with. 
The word "shall" as here used is equivalent to the word 
••must" (Post, p. 388.) 

Constitution cited and construed: Art. 2, sec. 20. 

8. SAME. Xnactlng clause styled, "Be it enacted by the general 
assembly of Tennessee," omitting the words '<the State of'^ 
before •'Tennessee" complies with the constitution. 
A statute (Acts 1907, ch. 17) whose enacting clause Is styled, 
"Be it enacted by the general assembly of Tennessee," com- 
plies with the mandate of the constitution (art 2, sec. 20) ro> 
quiring the style of the laws to be, "Be it enacted by the general 
assembly of the State of Tennessee." The omission of the 



11 Gates] SEPTEMBER TERM, 1907. 37T 

state, ex rel., y. Burrow. 

words *the State of does not cliange the legal meaning, as 
they are bnt the expression of a legal fact which exists with* 
out their nse In this proylslon. 
Acts cited and construed: Acts 1907, ch. 17. 

Constitution cited and construed: Art. 2, sec. 20. 

Cases cited and approved: Swan v. Buck, 40 Miss., 268; Amuse- 
ment Co. y. Traction Co. (C. C), 189 Fed., 858. 

Cases cited and distinguished: People y. Dettenthaler, 118 Mich.» 
695; Sjoberg y. Association, 73 Minn., 203; Seat of Qovemment 
Case, 1 Wash. T., 115; State y. Rogers, 10 Ney., 250; May y. 
Blce> 91 Ind., 546. 



FROM STJLUVAN. 



Appeal from tbe Chancery Court of Stdliyan County. 
— HaTi H. Haines^ Chancellor. 

E. K. Bachman and H. T. Campbell^ for complain- 
ant 

Joseph Bubbow, A. C. Keeblee^ A. B. Whttakeb^ J. 
H. Wblckeb^ and Jsbome Templbton^ for defendant. 



Mr. Justice Shields delivered the opinion of the 
Court 

This is a petition filed by E. Gouge against T. J. Bur- 
row, recorder of the city of Bristol, in the chancery court 
of SuUiyan county, for a fnandafrnfrS to compel the de- 



1 



378 TENNESSEE BEPOBTS. [119 Tenn. 

state, ex rel., y. Burrow. 

fendant to issue a license authorizing him to engage in 
the business of a retail dealer in liquors, wines, beer, 
and ale in the corporate limits of that city. The decis- 
ion of the case involves the constitutionality of chapter 
17, p, 81, of the Acts of 1907, passed February 1, 1907, 
and approved February 8, 1907, popularly known as the 
^Tendleton Law." 

The ground of the attack upon the validity of the act 
is that the enacting clause is not in the form prescribed 
^y section 20, art 2, of the constitution, providing that 
■^^'The style of the laws of this State shall be *Be it en- 
acted by the general assembly of the State of Tennes- 
see,' " in that it omits the words "the State of.'' The 
^itle and body of chapter 17, p. 81, Acts of 1907, are in 
these words : 

"An act to amend section 1, chapter 221, of the Acts 
of the general assembly of 1899, entitled, *An act to 
amend section 2, chapter 167, of the Acts of the general 
assembly of 1887, to prohibit the sale of intoxicating 
liquors as a beverage near any schoolhouse, public or 
private, where a school is kept, whether the school be in 
session or not,' so as to extend the provisions of said sec- 
tion 2, chapter 167, of the Acts of the general assembly 
of 1887, and said section 1, chapter 221, of the Acts of 
the general assembly of 1899, and said section 1, chapter 
2, of the Acts of the general assembly of 1903, to towns 
of not more than 150,000 inhabitants hereafter incorpo- 
rated. 

"Section 1. Be it enacted by the general assembly of 



11 Gates] SEPTEMBER TERM, 1907. 379 

state, ex rel., y. Burrow. 

Tennessee that section 1, of chapter 2, of the Acts of the 
general assembly of 1903, be amended by striking out 
the word ^five' in line 5 of said section, and inserting 
therefor the words *one hundred and fifty .^ 

"Section 2. Be it further enacted, that this act shall 
take effect from and after its passage, the public welfare 
requiring it." 

The acts which this and chapter 2, p. 5, of the Acts of 
1903, purport to amend, chapter 167, p. 293, of the Acts 
of 1887, and chapter 221, p. 474, of the Acts of 1899, pro- 
hibited the sale by retail of intoxicating liquors, wines, 
ale, or beer, as a beverage, within four miles of a school- 
house, public or private, where a school is kept, whether 
in session or not, except within the limits of incorpo- 
rated towns other than those incorporated after the 
passage of the act of 1899, having a population of not 
more than two thousand inhabitants by the federal cen- 
sus of 1890, or any subsequent federal census. 

The act of 1903 amended that of 1899 by striking out 
the word "two" and inserting the word "five," so as to 
make the former act apply to towns and cities thereafter 
incorporated having a population of five thousand inhab- 
itants ; and the present act amends that act by striking 
out the word "five" and inserting the words "one hun- 
dred and fifty," so as to make the prohibition extend to 
cities and towns incorporated after its passage having a 
population of not more than 150,000 inhabitants. 

The city of Bristol was incorporated by an act of the 
general assembly passed March 22, 1907 (Acts 1907, p. 



880 TENNESSEE REPORTS. [119 Tenn. 

state, ex reL, t. Barrow. 

524, c, 180) and approved March 26, 1907, the former 
charter having been abolished after chapter 17 of the 
Acts of 1907 was enacted, and comes within the purview 
of the last act. 

E. Gouge, a citizen of Bristol, conceiving chapter 17 
of the Acts of 1907 to be void because of the omission 
above stated in the enacting clause, demanded of T. J. 
Burrow, recorder, the license required for retailing 
liquors as a beverage in this State, so as to authorize 
him to engage in that business in Bristol; he having 
previously made arrangements to obtain State and 
county license from the county court clerk of the county. 
His demand was refused by the recorder, upon the 
ground that the sale of intoxicating liquors in the city of 
Bristol since its reincorporation was prohibited by the 
act in question. Thereupon this petition was filed. The 
chancellor, on a hearing before him upon petition and a 
demurrer thereto, sustained the constitutionality of the 
act and dismissed the petition. The petitioner has ap- 
pealed to this court and assigns error. 

The power of the general assembly to enact the law in 
question is not challenged and could not successfully be 
done. The validity of the statutes of which it is amenda- 
tory has been sustained by this court, and is not now an 
open question. State v. Raitschery 1 Lea, 97; Hatcher v. 
State, 12 Lea, 368. The sole ground of attack is that 
the act was not passed with the ceremony and in the form 
prescribed by the constitution ; that is, that the style of 
the enacting clause, because of the omission of the words 



11 Gates] SEPTEMBER TEBM, 1907. 881 

state, ex reL, y. Burrow. 

^*the State of," does not comply with the provisions of 
the constitution upon this subject. 

The first question for determination is the proper 
construction of section 20, art. 2, of the constitution, 
above set out. Petitioner contends that it is mcuidatory, 
and that nothing short of a literal compliance— the use 
of the exact words of the provision— will support the 
validity of a statute. 

The defendant insists : 

(1) That the enacting clause of the statute involved, 
when properly construed, does comply fully with the 
provision of the constitution. 

(2) That the provision invoked is directory, and that 
only substantial compliance is required, and that that 
is done in this statute. 

Constitutions are expressions of the sovereign will of 
the people, the fountain of all power and authority. 
The several departments of the government are created 
and vested with their authority by them, and they must 
exercise it within the limits and in the manner which 
they direct The provisions of these solemn instruments 
are not advisory, or mere suggestions of what would be 
fit and proper, but commands which must be obeyed. 
Presumably they are all mandatory. Certainly no provis- 
ion will be construed otherwise, unless the intention that 
it shall be unmistakably and conclusively appears upon 
its face. The supremacy and permanency of republics 
depend upon the maintenance of the fundamental law, 
in its integrity, as written in constitutions adopted by 



382 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., v. Burrow. 

the people; and it is the solemn duly of all those tempo- 
rarily vested with power, in all departments of the State, 
to do this. The necessities of a particular case will not 
justify a departure from the organic law. It is by such 
insidious process and gradual encroachment that con- 
stitutional limitations and government by the people are 
weakened and eventually destroyed. It has been well 
said: 

"One step taken by the legislature or judiciary in en- 
larging the powers of government opens the door for 
another, which will be sure to follow, and so the process 
goes on until all respect for the fundamental law is lost> 
and the powers of government are just what those in 
authority please to make or call them.*' Oakley v. As- 
pirmaU, 3 N. Y., 547, 568. 

What we have said applies to provisions of the char- 
acter of the one under consideration. Mr. Oooley, in his 
great work on Constitutional Law, at pages 93 and 94, 
says: 

"But the courts tread upon very dangerous grounds 
when they venture to apply the rules which distinguish 
directory and mandatory statutes to the provisions of a 
constitution. Constitutions do not usually undertake to 
prescribe mere rules of proceeding, except when such 
rules are looked upon as essential to the thing to be 
done; and they must then be r^arded in the light of 
limitations upon the power to be exercised. 

"It is the province of an instrument of this solemn 
and permanent character to establish those fundamental 



11 Gates] SEPTEMBER TERM, 1907. 383 

state, ex rel., v. Burrow. 

maxims, and fix those iinvarying rules by which all de- 
partments of the government must at all times shape 
their conduct; and, if it descends to prescribing mere 
rules of order in unessential matters, it is lowering the 
proper dignity of such an instrument and usurping the 
proper province of ordinary I^islation. We are not, 
therefore, to expect to find in a constitution provisions 
which the people, in adopting it, have not regarded as of 
high importance, and worthy to be embraced in an in- 
strument, which, for a time at least, is to control alike the 
government and the governed, and to form a standard 
by which is to be measured the power which can be ex- 
ercised, as well by the delegate as by the sovereign peo- 
ple themselves. 

"If directions are given respecting times or modes of 
proceeding in which a power should be exercised, there 
is at least a strong presumption that the people designed 
it should be exercised in that time and mode only ; and 
we impute to the people a want of due appreciation of 
the purpose and proper province of such an instrument 
when we* infer that such directions are given to any 
other end, especially when, as has been already said, it 
is but fair to presume that the people in their constitu- 
tion have expressed themselves in careful and measured 
terms, corresponding with the immense importance of 
the powers delegated, and with a view to leave as little 
as possible to implication." 

The general assembly is vested with all legislative au- 
thority, and within constitutional limitations that au- 



384 TENNESSEE BEPOBTS. [119 TeniL 

state, ex reL, ▼. Barrow. 

thoritjr is absolute. The constitution, however, has pre- 
scribed the form and manner of its exercise. The provis- 
ions upon this subject are to be found in article 2 of 
that instrument, and are as follows : 

"Sec. 17. Origin and Frame of JBi/te.— Bills may orig- 
inate in either house; but may be amended, altered or 
rejected by the other. No bill shall become a law which 
embraces more than one subject, that subject to be ex- 
pressed in the title. All acts which repeal, revive or 
amend former laws shall recite in their caption or other- 
wise the title or substance of the law repealed, revived or 
•amended. 

"Sec. 18. Of Passage of Bills.— Eyery bill shall be 
read once, on three different days, and be passed each 
time in the house where it originated before transmission 
to the other. No bill shall become a law until it shall 
have been read and passed on three different days in 
each house, and shall have received on its final passage 
in each house the assent of a majority of all the members 
to which that house shall be entitled under this constitu- 
tion ; and shall have been signed by the respective speak- 
ers in open session, the fact of such signing to be noted 
on the journal ; and shall have received the approval of 
the governor, or shall have been otherwise passed under 
the provisions of this constitution. 

"Sec. 19. When rejected.-- Att^v a bill has been re- 
jected, no bill containing the same substance shall be 
passed into a law during the same session. 

"Sec. 20. Style of Laios—When to Take Effect—The 



11 Gates] SEPTEMBER TERM, 1907. 385 

state, ex reL, t. Burrow. 

«tjle Of the laws of this State shall be, ^Be it enacted by 
the general assembly of the State of Tennessee/ 

"No law of a general nature shall take effect until 
forty days after its passage unless the same or the cap- 
tion shall state that the public welfare requires that it 
^should take eflfect sooner. 

"Sec. 21. Journal of Proceedings — Ayes and Noes.— 
J2ach house shall keep a journal of its proceedings and 
publish it, except such parts as the welfare of the State 
may require to be kept secret ; the ayes and noes shall 
T)e taken in each house upon the final passage* of every 
l)ill of a general character and bills making appropria- 
tion of public moneys; and the ayes and noes of the 
imembers on any question, shall, at the request of any 
ifive of them, be entered on the journal." 

These provisions have generally been understood in 
this State to be mandatory, and all of them, with one ex- 
ception, that have come before this court for construc- 
tion, have been held to be of this character. The excep- 
tion referred to is the provision in section 18 to the 
•eflfect that the fact that the bill was signed by the res- 
pective speakers of the senate and house in open ses- 
ision be noted on the journals. This was held by a ma- 
jority of the court to be directory, because the phraseol- 
ogy of the entire section was deemed to require such 
^construction. Home Tel. Co. v. Nashville^ 118 Tenn., 1, 
101 S. W., 773. 

The provision contained in section 17, that "No bill 
^all become a law which embraces more than one sub- 
119 Tenn. — 26 



386 TENNESSEE KEPORTS- [119 Tenn. 

state, ex rel., v. Burrow. 

ject, that subject to be expressed in the title,^' came be- 
fore the court for construction soon after the adoption 
of the present constitution^ by which it was first made a 
part of the organic law of the State, in the case of Can- 
non V. Mathes, 8 Heisk., 516, and was held to be manda- 
tory. It is there said : 

"The particular portion of this section on which the 
question in the present case is raised is the following: 

" *No bill shall become a law which embraces more 
than one subject, that subject to be expressed in the title.' 

"Similar provisions have been introduced of late years 
into many of the State constitutTons, and frequent occa- 
sions have arisen for their construction by the courts. 
In several States the courts have construed the provis- 
ions to be only directory to the l^islatures, and held 
that their acts are not invalid, although not conforming 
to the directory requirements of their constitutions. 
But the courts of most of the States have construed the 
provisions to be mandatory or imperative, and that 
therefore the acts not passed in conformity therewith 
are invalid and void. 

"The language adopted in our constitution differs in 
some respects from that used in other States. *No bill 
shall become a law which embraces more than one sub- 
ject' 

"There is a direct, positive and imperative limitation 
upon the power of the legislature. It matters not that 
a bill be passed through three readings in each house, 
on three different days, and has received the approval 



11 Gates] SEPTEMBEB TERM, 1907. 387 

state, ex rel., v. Burrow. 

of the governor. Still it is not a law of the State if it 
embraces more than one subject. It is, therefore, a 
plain, absolute, and unconditional limitation upon 1^- 
islative power. But, while it is conceded that a bill 
wliich embraces more subjects than one cannot become a 
law, because of the imperative or mandatory character 
of the language, ;^t it is suggested that the remaining 
portion of the provision, to wit, ^that subject to be ex- 
pressed in the title,' was not intended to be mandatory, 
but only directory, and, therefore, that a bill may become 
a law, although the subject of the bill may not be ex- 
pressed in the title. 

''In the present case we do not deem it necessary to 
express an opinion whether any provision of a consti- 
tution can properly be treated otherwise than as manda- 
tory. The essential nature and object of constitutional 
law being restrictive upon the powers of the several de- 
partments of government, it is difficult to comprehend 
how its provisions can be regarded as merely directory.^' 

While the provision involved in that case has been 
liberally construed, so as not to embarrass l^islation, 
yet all subsequent cases involving the question have rec- 
ognized its mandatory character and the necessity of a 
compliance with its spirit in the enactment of statutes. 
Morrell v. Fickle, 3 Lea, 79; State v. Yardley, 95 Tenn., 
552, 32 S. W., 481, 34 L. B. A., 656 ; Cole Mamifacturing 
Co. V. Fails, 90 Tenn., 482, 16 S. W., 1045; State v. Mo- 
Conn, 4 Lea, 1. 

Provisions similar to those embraced in our constitu? 



388 TENNESSEE REPORTS. [Il9 Tenn. 

state, ex rel., v. Durrow. 

tion are to be found in the organic law of almost all the 
States, and there is a conflict in judicial opinion whether 
they are mandatory or merely directory. In some States 
the one under consideration has been held to be manda- 
tory, and a strict compliance with it necessary to the 
validity of all legislation enacted. People v. Dettenr 
thaler, 118 Mich., 595, 77 N. W., 45(V 44 L. R. A., 165; 
Sjoherg v. Security Savings & Loan Association, 73 
Minn., 203, 75 N. W., 1116, 72 Am, St. Rep., 616; State 
V. Rogers, 10 Nev., 250, 21 Am. Rep., 738; May v. Rice, 
91 Ind., 546; Burritt v. Commissioners, 120 111., 322, 11 
N. E., 180; State v. Patterson, 98 N. C, 660, 4 S. E., 350; 
Seat of Government Case, 1 Wash. T., 115. In other 
States these provisions have been held to be directory 
only, and a substantial compliance with them to be suf- 
ficient. Pirn V. Nicholson, 6 Ohio St., 177 ; MdPherson 
V. Lennard, 29 Md., 377; City, etc., v. Riley, 52 Mo., 424; 
Sicann v. Buck, 40 Miss., 268. 

The provision we are here called upon to construe is 
in plain and unambiguous words. The meaning of it is 
clear and indisputable, and no ground for construction 
can be found. The language is : "The style of the laws of 
this State shall be," etc. The word "shall," as here used, 
is equivalent to "must." We know of no case in which a 
provision of the constitution thus expressed has been 
held to be directory. We think this one clearly man- 
datory, and must be complied with by the legislature in 
all legislation, important or unimportant, enacted by it ; 
otherwise, it will be invalid. 



11 Gates] SEPTEMBBB TERM, 1907. 389 

state, ex reL, v. Burrow. 

Haying determined this, we are now to decide whether 
this mandate of the constitution has been complied with 
by the general assembly in enacting the Pendleton law. 

Written laws, in all times and all countries, whether 
the edicts of absolute monarchs, decrees of king and 
council, or the enactments of representative bodies, have 
almost invariably, in some form, expressed ui)on their 
face the authority by which they were promulgated or 
enacted. The propriety of an enacting clause in con- 
formity to this ancient usage was recognized by the sev- 
eral States of the Union after the American Revolution, 
when they came to adopt constitutions for their govern- 
ment, and without exception, so far as we can ascertain, 
express provision was made for the form to be used by 
the legislative department of the State in enacting laws. 
This was done in this State when it adopted a constitu- 
tion in 1796, and the same provision then made is to be 
found in our present constitution, adopted in 1870: y' The 
purpose of provisions of this character is that all statr- 
utes may bear upon their face a declaration of the sov- 
ereign authority by which they are enacted and declared 
to be the law, and to promote and preserve uniformity in 
legislation. Such clauses also import a command of 
obedience and clothe the statute with a certain dignity, 
believed in all times to command respect and aid in the 
enforcement of laws. These are the sole purposes of an 
enacting clause. It is not of the essence of the law, adds 
nothing to its meaning, and furnishes no aid in its con- 



r 



390 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., v. Burrow. 

struction. It is a form, but one that is necessary to be 
used in l^islation. 

We will now compare the enacting clause provided by 
the constitution and the one used in this statute. The 
only difference claimed by the petitioner to be in them 
is the omission in the latter of the words "the State of 
We do not think that this constitutes an appreciable 
difference, but that they are, in fact and in law, the same 
— that they are absolutely synonymous. 

The sovereign authority they import is the same. 
They clothe the act with the same dignity, and are 
equally efficient to promote uniformity in legislation. 

It is impossible to point out in the form given in the 
constitution any element of governmental authority, or 
shade of human thought, which is not contained in the 
enacting clause of the statute. No one can read the lat- 
ter without being impressed with the fact that the stat- 
ute purports to be enacted by the general assembly of the 
State of Tennessee. 

Tennessee is a sovereign power, and the name, with- 
out more, when used in connection with governmental 
functions, whether in constitutional provision, statu- 
tory enactment, or judicial decision, imports sovereign- 
ty, as much as do the names of any of the great powers 
of the world— Prance, Russia, or Spain. Indeed, so 
well is this recognized in r^ard to the names of all the 
States of the Union that a number of the States, in the 
enacting clause prescribed by their constitutions, omit 
the word "State^* altogether ; that of Alabama being an 



11 Gates] SEPTEMBER TERM, 1907. 391 

state, ex rel., v. Burrow. 

illustration, which is in these words : "Be it enacted by 
the legislature of Alabama." ^ 

The words "the State of are necessarily and conclu- 
sively implied in the phrase "the general assembly of 
Tennessee." The implication is certain and unavoidable. 
The omitted words, and those alone, can be implied, and 
there is no room for any mistake. The two clauses, the 
one provided in the constitution and the one used m the 
statute, therefore, may be stated with absolute accuracy 
to be the same in substance, meaning, and form. Can it, 
then, be said that the apparent omission of the three 
words, "the State of," which the human mind involun- 
tarily and with absolute certainty supplies in reading 
the enacting clause of the statute, when all the purposes 
of the constitutional provision are accomplished, can 
have the effect to vitiate a law otherwise duly enacted 
by the general assembly and approved by the governor of _^ 
the State? We think noty' To hold that it did would be 
to sacrifice substance to the myth of noncompliance with 
a form in a matter where every purpose of the framers of 
the organic law had been fully effectuated. Such an ab- 
surd result was not intended and cannot be allowed. 
While some courts of last resort have held, as we do, that 
the constitutional provision here invoked is mandatory, 
yet no case has been called to our attention where a 
statute has been held void for a failure to comply with 
that provision, when the enacting clause used necessa- 
rily and conclusively expressed the same meaning and 
had the same effect, although not literally in the form 



392 TENNESSEE REPORTS, [119 Tenn. 

state, ex rel., v. Burrow. 

used. The statutes held void in the cases of People w 
Dettenthaler, 118 Mich., 595, 77 N. W., 450, 44 L. R. A.,. 
165, Sjdberg v. Secunty Savings & Loan Ass^n, supra,, 
and the Seat of Government Case, supra, had no enact- 
ing clause, and are therefore not even analogous to thi& 
case. The case of State v. Rogers^ supra, involved the- 
validity of a statute of the State of Nevada with an en- 
acting clause in these words, "The people of the State 
of Nevada, represented in assembly, do enact as follows,"^ 
while that required by the constitution of that State 
was, "The people of the State of Nevada, represented ia 
senate and assembly, do enact as follows." 

The omission here was of one of the two branches 
composing the legislative body, and the act read as if 
passed by the other branch alone. In other words, in- 
stead of it conclusively appearing that the law wa& 
enacted by the proper authority, it appeared that it was 
not, and it was therefore necessarily void. The case of 
May V. Rice, supra, was a similar one. The constitution 
of Indiana required the style of the enacting clause ta 
be, "Be it enacted by the general assembly," and the act 
held void omitted the words "by the general assembly." 
This was evidently fatal, as all reference to the enacting 
power was absent. We have not had access to the Illi- 
nois and North Carolina cases, and cannot state the 
nature of the defects in the enacting clauses of the stat- 
utes there held void. The case of Svxinn v. Buck^ supra,, 
is more in j)oint. The constitution of Mississippi pro- 
vided that "that style of their [the two houses compos- 



11 Cab's] SEPTEMBER TERM, 1907. 395 

state, ex reL, v. Burrow. 

ing the legislature] laws shall be, ^Be it enacted by the 
legislature of the State of Mississippi.' " The style of 
the act or joint resolution in question was, "Resolved 
by the legislature of the State of Mississippi." In sus- 
taining the statute in that case it is said : 

"It is necessary that every law should show on its 
face the authority by which it is adopted and promul- 
gated, and that it should clearly appear that it is in- 
tended by the legislative power that enacts it that it 
should take effect as a law. These conditions bein^ ful- 
filled, all that is absolutely necessary is expressed. The 
word ^resolved' is as potent to declare the legislative will 
as the word ^enacted,' . . . the requirement of the 
constitution is thereby substantially complied with, and 
the will of the legislature sufficiently declared." 

The case of Montgomery Amusement Co. v. Montgom- 
ery Traction Co. (C. C), 139 Fed., 358, is also analo- 
gous. The constitution of Alabama ordains : "The style 
of the laws of this State shall be, ^Be ilf enacted by the 
legislature of Alabama.' " The enacting clause of the 
statute in question was, "Be it enacted by the legislature 
of the State of Alabama," and it was insisted that the 
addition of the words "the State of" rendered the statute 
invalid. It was held that, while the constitutional pro- 
vision was mandatory, yet, as the addition of the words 
"the State oF did not change the meaning, they did not 
aflfect the validity of the statute. It is there said : 

"The only fault is that the enacting clause goes fur- 
ther than the constitution commands, and declares Hhe 



394 TENNESSEE REPORTS. [119 Tenn. 

state, ex rel., y. Burrow. 

legislature of Alabama,' which enacted the statute, is 
*the legislature of the State of Alabama.' That, how- 
ever, is but a statement of a legal fact—a consequence 
which the constitution itself inevitably reads into every 
act," 

Applying this reasoning of that case to this statute, 
how can it be said that the words "the State of" are 
omitted in contemplation of the constitution, whoi they 
are but the expression of a legal fact, which that instru- 
menfcitself supplies and reads into every enacting clause. 

We are, for the reasons herein stated, of the opinion 
that the enacting clause of this statute does comply with 
the mandate of the constitution in relation to the style 
of statutes, and that it is a valid and constitutional law. 

The decree of the chancellor is affirmed, with cost. 



11 Gates] SEPTEMBER TERM, 1907. 395 

McMinn Co. t. Allen. 

McM'iNN County t?. N. G. Allen et al. 
. {Knowville. September Term, 1907.) 

1. BLEOnONS. Ballot and registration statates become appli- 
cable to consolidated ci^il districts ol the requisite population 
according to latest census, when. 

Where the ballot law (Acts 1890, ex. ses., ch. 24, as amended by 
Acts 1897, ch. 17) applies to towns, cities, and cIyII districts 
having a certain population, as computed by the latest federal 
census, and the registration law (Acts 1890, ex. ses., ch. 26) ap- 
plies to dvil districts having a certain population, as computed 
by the latest federal census, and the several civil districts of 
a county, all under the requisite population, are as units, or 
each as a whole, united, or consolidated, by statute (Acts 1907, 
ch. 102) into other civil districts, each having the requisite 
population, as ascertained by computing or adding together the 
population of the original civil districts composing each new 
consolidated district according to its population in the latest 
federal census made previous to such consolidation, the said 
ballot and registration laws become applicable immediately 
upon said consolidation becoming effective. 

Acts cited and construed: Acts 1890 (ex. sea,), chs. 24 and 25; 
Acts 1897, ch. 17; Acts 1907, ch. 102. 

2. SAME. Ballot law has not been repealed. 

The ballot law (Acts 1890, ex. ses., 24, as amended by Acts 1897, 
ch. 17) has not been repealed by any subsequent act {Pott, p. 
400.) 



FROM McMINN. 



Appeal from the Chancery Court of McMinn County. 
-T. M. McCONNBLL^ Chancellor. 



396 TENNESSEE REPORTS. [119 Tenn^ 



McMlnn Co. v. Allen. 



BuRKETT & Miller^ for complainant 
IviNs & Mansfield, for defendants. 



Mr. Justice Neil delivered the opinion of the Courts 

The bill in this case was filed by McM'inn county 
against N. Q. Allen, D. M. OWens, and James Reagan, in 
their official capacities as election commissioners of the 
county, for the purpose of enjoining them from acting 
under the registration law and the Dortch law in the^ 
various civil districts of the county, on the ground that 
there was no lawful authority for so acting, and that the^ 
county would be put to the expense of numerous suits, 
by persons who might perform services in putting in 
force the said two laws referred to and applying them in 
the county. 

The facts on which the litigation is based were agreed 
to by the respective counsel, and are as follows : 

"In thi« cause it is agreed and admitted that, wheiir 
the federal census of 1900 was taken, McMinn county 
was divided into eighteen civil districts, and that said 
federal census of 1900 shows the population of said civil 
districts as they existed; and it is further admitted 
that according to the federal census of 1900 no one of 
said districts contained as much as 2,500 population. 

"And it is further admitted that by chapter 102, p. 
284, of the Acts of 1907 of the general assembly of Ten- 



11 Gates] SEPTEMBER TEBM, 1907. 397 

McMlnn Co. v. Allen. 

nessee^ the second, third, fourth, fifth, sixth, eighth, 
ninth, eleventh, twelfth, thirteenth, sixteenth, and sev- 
enteenth civil districts of McMinn county were abol- 
ished, and their territory attached to the remaining dis- 
tricts, as follows : The second and fourth civil districts 
were made a part of the first district, the fifth and sixth 
were made a part of the eighteenth district, the twelfth 
and thirteenth districts were made a part of the four- 
teenth civil district, the third and eleventh districts were 
made a part of the seventh district, and the eighth and 
ninth districts were made a part of the tenth district, 
and the sixteenth and seventeenth districts were made a 
part of the fifteenth district, 

^^It is further admitted that, when said consolidation 
of said districts was made, their territory was the same 
as it had been when the federal census of 1900 was 
taken, and that the i)opulation of each of the six civil 
districts, consolidated as aforesaid by chapter 102, con- 
tained more than 2,500 population computed by the 
federal census of 1900, when said consolidation was 
made. There is no town, city, or civil district in the 
county now having, or that at any. time has had 9,000 
population. 

"It is further admitted that the costs of registration 
sought to be enjoined in this case will exceed |1,000." 

The chancellor disallowed the relief sought as to the 
registration law, but granted relief as to the Dortch 
law, and decreed accordingly. Prom this decree both 



398 TENNESSEE REPORTS. [119 Tenn. 

McMlnn Co. v. Allen. 

Bides appealed to this court, and have here assigned er- 
rors. 

The Dortch law consists of chapter 24, p. 50, Acts of 
the Extra Session of 1890, and the amendments thereto 
contained in subsequent acts, and refers to the ballots 
and method of voting them. The registration law con- 
sists of chapter 25, p. 59, of the Acts of the Extra Ses- 
sion of 1890, and the amendments thereto. These laws 
need not be stated in more particularity, as they are 
well known in this State, and their special provisions 
need not be considered in disposing of the question aris- 
ing on the inquiry, further than we shall now state. 

By chapter 17, p. 141, of the Acts of 1897, the Dortch 
law was amended, among other things, so as to apply 
to "towns, cities and civil tiistricts having a population 
of 2,500 inhabitants or over, computed by the federal 
census of 1890, or which may hereafter have that num- 
ber, or over that number, by any subsequent federal 
census.'' The original registration law, by its terms, 
applies to civil districts having a population of 2,500, 
computed by the federal census of 1880, "or which may 
hereafter have that number or over, computed by any 
subsequent federal census." 

The question for decision is whether the facts stated 
show that the civil districts created by the act of 1907 
meet the requirements of 2,500 population, computed by 
the federal census of 1900. 

It is insisted for the complainant> in effect, that the 
word "computation" means enumeration; that is to say 



11 Gates] SEPTEMBEB TERM, 1907. 899 

McMinn Co. v. Allen. 

such civil districts must be regarded as they stood in 
1900, when the census was taken, and that, inasmuch as 
no civil district at that time had a population so large 
as 2,500, the law cannot be applied to any of them. 

It is insisted, on the other hand, that inasmuch as 
such civil districts as existed in 1900 were joined to- 
gether to make the civil districts in 1907, the adding to- 
gether of the various populations of the several civil dis- 
tricts which went to compose the dvil districts of 1907 
is in fact a computation of the population according to 
the said census of 1900. 

We think this latter view is the correct one. The fed- 
eral census was fixed upon as a ready and convenient 
means of ascertaining the population of the districts to 
which the laws referred to should apply. The legisla- 
ture could have directed a special census to be made for 
the purpose, but such a course would have been idle 
when the figures were already at hand, showing that the 
several civil districts, when thrown into certain groups 
and thus cast into new units, would make new civil dis- 
tricts of a defined territory, with a population exceeding 
the amount required by the two laws above mentioned. 
When these new units were made, the act of turning to 
the federal census and counting the i)opulations of the 
original districts composing each new civil district, and 
adding the several amounts together, was a process of 
computation under the census. 

The foregoing was the only point that was argued be- 
fore the court on the hearing of the cause, and the only 



400 TENNESSEE EEPORTS. [119 Tenn. 

McMinn Co. v. Allen. 

one discussed to any extent in the brief filed for the com- 
plainant It was suggested that the original Dortch 
law was repealed by a subsequent law; but this was put 
forward in only a tentative way, and the position is 
without merit, and need not be further referred to. 

On the grounds above mentioned, we are of the opin- 
ion that the chancellor acted correctly in holding the 
registration law applicable to the several civil districts 
of McMinn county, and his decree in this respect is af- 
firmed. We are also of the opinion that he acted incor- 
rectly in holding that the Dortch law did not apply to 
the said civil districts, and his decree in this respect is 
reversed. 

A decree will be entered here decreeing the rights of 
the parties in accordance with this opinion. 

The complainant will pay the costs of this proceeding. 



11 Gates] SEPTEMBER TERM, 1907. 401 



Norman v. Railroad. 



T. F. Norman, Administrator, v. Southern Railway 

Company.* 

{Enoxville. September Term, 1907.) 

1. &AILR0AD8. Not liable tor death of switchman, tor lailare 
of care to uncouple, on the ^ound of negrligence, when. 

A railroad company is not liable, on the ground of negligence, in 
damages for the death of a switchman killed while employed 
in the yards for the distribution of freight cars by being thrown 
from a freight car by a Jerk, caused by the conductor's in- 
ability to uncouple the cars at the proper moment, on account 
of a broken link in the coupling pin, a defect not communi- 
cated to the deceased, where the failure to uncouple was a very 
common occurrence well known to the deceased. (Post, pp. 
406-410.) 

2. SAME. Same. Oonductor's failure to notify switchman of 
defective coupling chain is not negligence, when. 

Where a freight car, equipped with a defective coupling pin chain, 
was nevertheless one which, in the ordinary course of business, 
deceased as switchman was required to assist in distributing, 
it was not incumbent on the conductor to notify the deceased of 
the defect before attempting to uncouple the car, so that de- 
ceased could have protected himself from a sudden jerk of the 
car, due to the conductor's inability to uncouple the car at once 
with the lever, especially where the failure to uncouple was a 
very common occurrence well known to the deceased. {Post, 
pp. 410, 411. 



*A8 to duty of master to warn servants, see note to James v. 
Rodipes Lumber Co. (La.), 44 L. R. A., 83. 



119 Tenn. — 26 



402 TENNESSEE EEPOBTS. [119 Tenn. 

Norman ▼. Railroad. 

8. UASTBB AHD SS&VANT. Bule as tp safe place and saf& 
appliances does not apply, when. 
The general rule that the master must famish a sate place and 
safe appliances does not apply, when the very work the servants 
are employed to do consists in making a dangerous place safe, 
or in constantly changing the character of the place for safety 
as the work progresses. {Post, pp, 411, 412.) 

Cases cited and approved: Heald v. Wallace, 109 Tenn., 364; 
Smith V. Coal & Iron Co., 115 Tenn., 543; Railroad v. Hen- 
nessey, 96 Fed., 713, 38 C. C. A., 307. 

4. SAMB. Master is not required to warn servantsiof transitory 
danger likely to happen at any time, when. 

A master is not required to warn his servants of every transitory 
risk, when the only thing the servants do not know is the pre- 
cise Jime when the danger will supervene, nor when the actual 
danger which causes the injury is due to a transitory occurrence* 
of such a nature that the injured servant knows it will probably 
happen from time to time. {Post, pp. 411, 412.) 

5. BAILBOADS. Switchman for distribution of defective cars, 
assumes the risks incident to his duties. 

A railroad switchman employed in the yards, and charged with 
the duty of distributing defective cars for repairs, which, by the^ 
very nature of his occupation, he must know, or have reason to- 
know, are unsafe and dangerous, he voluntarily assumes the 
risks and hazards which are incident to the duty he has under> 
taken to perform. (Post, pp. 413, 414.) 

Cases cited and approved: Railroad v. Hennessey, 96 Fed., 713,. 
38 C. C. A., 307; Railroad v. Behymer, 189 U. S., 468. 

e, SAME. Same. And it is immaterial that a car is not marked 
defective by the inspector, when. 
Where it was the duty of a railroad switchman to handle a de- 
fective car, whatever its condition, at the time he was killed by 
being thrown from the car by a Jerk resulting from the failure 



11 Gates] SEPTEMBER TERM, 1907. 403 

Norman y. Railroad. 

of the car to uncouple when expected, where he also knew that, 
whether it was defective or not, it might not uncouple, and in 
that case he might expect the Jerk, it was immaterial whether 
the car had been marked by the inspector for the defectiye 
coupling pin chain attached thereto or not. {Post, p, 414.) 

7. 8AMB. Violation of rule by conductor tending: to prevent 
accident cannot be complained of by injured switchman, when. 

In an action of damages for the death of a railroad switchman 
caused by a Jerk of the car as a result of the conductor's in»- 
ability to uncouple the car, because the coupling pin chain was 
broken, it is immaterial that the conductor, in attempting to un- 
couple the car, violated a rule of the railroad company prohibit- 
ing employees from going between the cars when in motion, 
and directing that, if anything connected with the coupling ap- 
paratus was defective, the employee should not attempt to make 
the coupling, but should make report of the defect. The co^ 
ductor*s violation of the rule could not have contributed In any 
way to the death of the switchman, but, on the contrary, must 
have tended to prevent the accident. (Post, p, 417.) 

8. SAME. Declaration not stating a cause of action for the vio- 
lation of the federal safety appliance act. 

Where the declaration for the death of a railroad switchman re- 
sulting from a defective coupling pin chain on a freight car 
avers only incidentally that defendant was a common carrier 
operating numerous lines of railroad "running to divers places 
and points in and beyond the State of Tennessee;" but not even 
averring that the particular car alleged to be defective was 
being used in interstate traffic, it does not state a cause of ac- 
tion for the violation of the federal safety appliance act prohib- 
iting railroads from using cars in interstate traffliC not equipped 
with automatic ' couplers obviating the necessity of going be- 
tween the cars, and providing that there shall be no assump- 
tion of risk by any employee injured by going between the cars 
not equipped according to the act. {Post, pp, 417-420.) 



404 TENNESSEE REPORTS. [119 Tenn. 

Norman v. Railroad. 

Act of Congress cited and construed: Act March 2, 1893, ch. 
196. 

Cases cited and distinguished: United States ▼. Railroad (D. 
C). 145 Fed., 438; United States v. Railroad (D. C), 154 Fed.. 
897. 

9. SAME. FaUure to repair automatic coupler before distribution 
of car constitutes no violation of federal safety appliance act. 

The failure to repair a defective automatic coupling pin chain be- 
fore distributing the car to which it Is attached does not consti- 
tute a violation of the federal safety appliance act whose pro- 
visions are stated in the foregoing headnote. where the dis- 
covery of the defect and the injury resulting therefrom occur 
simultaneously, and where no negligence appears for failure to 
discover the defect earlier. A reasonable time within which to 
make the repair will be allowed. If the defect had been ob- 
served by the inspector before the car was detached from the 
train, it would still have been detached and distributed, and 
repairs thereafter made. {Post, pp, 420, 421.) 

10. VEBDIOTS. Directed upon consideration of the entire evi- 
dence. 

Wherever, the Jury is directed to return a verdict, it should be 
upon a consideration of the entire evidence in the case, and not 
upon any detached portion of such evidence. {Post, pp. 421, 
422.) 

Case cited and approved: Greenlaw v. Railroad, 111 Tenn., 
187. 

11. SAME. Same. Directed where there is no controversy as to 
any material fact. 

Where there is no controversy as to any material fact, the court 
may instruct the jury to return a verdict in accordance with his 
view of the law applicable to such uncontroverted facts. {Post, 
p. 422.) 

Case cited and approved: Tyrus v. Railroad, 114 Tenn., 693. 



11 Cates] SEPTEMBEE TERM, 1907. 405 

Norman v. Railroad. 

Id, SAME. Kotion lor peremptory instructioiis is not addressed 
to court's discretion, but presents a question of law. 
A motion for peremptory instructions is not one addressed to the 
discretion of the court, but one presenting a question of law 
as to whether there is any determinative evidence on which the 
Jury must base a verdict in favor of the party who produces it.. 
(Post, pp. 422, 423.) 
Cases cited and approved: Traction Co. v. Brown, 115 Tenn., 329; 
Kinney v. Railroad, 116 Tenn., 451. 

18. SAME. Not to be directed where there is any dispute or doubt 
upon material and determinative evidence and issues. 

There is no power in the trial Judge to direct a verdict where 
there is a dispute as to any material and determinative evi- 
dence, or any doubt as to the conclusion to be drawn from the 
whole evidence upon the issues to be tried. {Post, p. 423.) 

Case cited and approved: Kinney v. Railroad, 116 Tenn., 451. 

14. SAME. Improper application of the rule in directing a verdict 
is no argument against it. 
The fact that the trial Judge may sometimes make an improper 
application of the rule or the fact that there are supposed 
difficulties in its application because of alleged tendencies of 
trial Judges to encroach upon the province of the Jury, consti- 
tutes no argument against the soundness of the rule. (Post, 
pp. 423, 424.) 

16. SAME. Directed where a servant assumed the risk, and de- 
fendant is guilty of no negligence, when; case in Judgment. 
Where, in an action for the death of a railroad switchman, it ap- 
pears upon the uncontradicted facts that he assumed the risk 
as a matter of law, and where the facts are such that all rea- 
sonable men must draw the same conclusions from them that 
the defendant was not guilty of negligence, a question of law 
only is presented to the court, and it is proper for the trial 
court to direct a verdict for the defendant (Post, pp. 422, 423, 
424.) 



406 TENNESSEE REPORTS. [119 Tenn^ 



Norman v. Railroad. 



FROM KNOX. 



Appeal in error from the Circuit Court of Knox 
County to the Court of Civil Appeals, and Certiorari 
from Court of Civil Appeals. Jos. W. Sneed^ Circuit 
Judge. 

PiOKLB^ TuENBE & Kbnneely, foF plaintiff. 
JouEOLMON^ Wblckee & SMITH, foF defeodaut. 



Mb. Special Justice Hendebson delivered the opin- 
ion of the Court. 

This is an action to recover damages for the death of 
Henry Lucas, alleged to have been caused by the negli- 
gence of the railway company. At the conclusion of 
plaintiff's evidence before the jury, upon motion of de- 
fendant, the trial judge directed verdict in favor of 
defendant, which was rendered, and judgment was ac- 
cordingly entered. Motion by plaintiff for new trial 
having been overruled, he appealed in error to the court 
of civil appeals, where the judgment of the circuit court 
was aflftrmed. The case is now before this court upon 
certiorari. 



11 Gates] SEPTEMBER TERM, 1907. 407 

Norman ▼. RaOroad. 

The grounds uiK)n which recovery is sought under the 
^declaration is that plaintiff's intestate, Lucas, was em- 
ployed as a switchman in defendant's yards, where 
freight cars were distributed, and while in the perform- 
ance of his duties as such, and without any fault on 
his part, he was, by a sudden jerk of the train, thrown 
from the car upon which he stood, and run over and 
killed." This sudden jerk is alleged to have been caused 
by the failure of the conductor to uncouple the car upon 
which plaintiff's intestate stood from the rest of the 
train. It is alleged that this failure to uncouple was 
•caused, first, by defective coupling appliances, in that 
the coupling pin was not attached to the lever on the 
outside of the car, thus rendering it necessary for the 
conductor to go between the cars and lift the pin; and, 
«econd, by the failure of the inspector to discover and in- 
dicate the alleged defect, or the failure of the conductor 
to observe it. 

The facts are: The deceased, Lucas, was about 
twenty-five years of age. He was employed as switch- 
man in defendant's yards at Lonsdale, near Knoxville, 
-and had been so employed and engaged in the work for 
some three years. These yards were used as a place 
to make distribution of freight cars to be carried on the 
various lines of defendant connecting at that point. 

When the train of cars arrives at the yards, it is the 
*duty of the inspector to go around and inspect each car. 
If any are found to be out of repair to the extent that 
they should be taken out of the train, he indicates this 



408 TENNESSEE REPORTS. [119 Tenn. 

Norman v. Railroad. 

by a certain mark placed upon the car. When the con- 
ductor and switchmen find a car thus marked, they take 
it to what is called the "repair track," and thore it is 
left for repairs. 

If the inspector finds a car with only slight defects, 
not sufficient to require the car to go to the repair track, 
but to be distributed along with the other cars for dis- 
tribution, he indicates this by a certain other mark, 
which indicates that the repairers will make the neces- 
sary repairs while the car is in the train ; the car, how- 
ever, to be distributed by the conductor and switchmen 
along with the other cars for distribution, as if it was 
not marked at all. 

The yards are known as "gravity yards." The cars to 
be detached from the train, are backed up by* the en- 
gineer to the proper point, where they are uncoupled by 
the conductor of the yards and allowed to roll down to 
the proper track, while the switchman rides them and 
manages the brakes. 

Walter Gates was the conductor in charge of the yards 
on this occasion, and had been for some 3^ years prior 
thereto. The deceased, Lucas, was the switchman, and, 
as before stated, had been so employed for some three 
years, and on different occasions had himself tempora- 
rily acted in the capacity of conductor, and was experi- 
enced in the business, fully acquainted with the duties. 
He stood upon the rear end of the rear car to be de- 
tached from the train. The train was backed slowly 



11 Gates] SEPTEMBEE TERM, 1907. 409 

Norman v. Railroad. 

up, when Gates stepped up to uncouple the car, that it 
might roll down the grade. 

The train was equipped with couplers constructed 
with a crank or lever to which is attached a chain fasten- 
ed to the coupling pin. By the turning or raising of the 
crank or lever, without going between the cars, the pin 
is raised and the cars thus uncoupled. On this car the 
chain had been broken so that the lever did not raise the 
coupling pin. Gates then went between the cars to raise 
the pin, but did not succeed in this. The engineer stop- 
ped the train, as was usual, when the car upon which de- 
ceased stood ran out its slack, as the witnesses say, 
causing a slight jerk. About this time deceased fell 
from the car in front of the train as it rolled back, and 
one wheel ran over his head, crushing his skull, from the 
effect of which he died. 

It was not unusual — the witnesses say that it was a 
common thing of frequent occurrence— that the con- 
ductor would fail for one reason or another to uncouple 
the car at the first effort, a fact which was, of course, 
known to the deceased, and that at such times there 
would be a jerk by the sudden stopping oif the car at- 
tempted to be detached, instead of rolling on down the 
grade. 

The inspector did not discover this defect in the coup- 
ling appliance, or, if he did, he failed to mark the car, 
or indicate it in any way. The conductor failed to ob- 
serve the defect, and failed? to detect the mistake of the 
inspector until he attempted to uncouple. It is insisted 



410 TENNESSEE REPORTS. [119 Tenn. 

Norman ▼. RaUroad. 

that this negligence of the inspector and conductor, and 
particularly of the latter, who was deceased's superior 
^nd yice principal of the company, was the proximate 
<^ause of the death of the deceased, and that such n^li- 
gence was not one of the risks assumed by deceased in 
Mb employment 

It is argued that this risk arose from the neglect of 
the master to perform his absolute and positive duty to 
the servant in furnishing safe appliances; that the death 
of the deceased was the proximate result of the failure of 
the master, who was represented by the inspector and 
conductor, to warn the deceased of the existence of a 
•danger well known to^the master, and of which the mas- 
ter knew the deceased to be ignorant. 

The failure to uncouple, as above stated, the proof 
■shows, was a very common occurrence^ a common inci- 
pient to the service, with which deceased, an experienced 
switchman, was familiar; and it was clearly his duty to 
look out and be prepared for such. He knew nothing of 
the defect in the coupling appliances, it is true; but, 
from his experience in matters of this sort, he knew that, 
ivhether the appliances were defective or not, the con- 
ductor might, for some reason, fail to make the uncoup- 
ling, and it was his duty to be prepared for such. 

Proof of the mere fact that there was a broken link in 
the chain attached to the coupling pin, so that the lever 
would not raise it when applied, is not of itself negli- 
gence. In this case it was a part of the business of de- 
ceased to handle damaged or defective cars. Even if the 



11 Gates] SEPTEMBEE TEEM, 1907, 411 

Norman y. Railroad. 

t^ondnctor had known of the defect, and had attempted, 
notwithstanding this, to make the unconpling, it wonld 
not have been actionable negligence on his part to have 
failed to notify the deceased thereof before attempting to 
uncouple; for the car, in the ordinary course of the bus- 
iness, would have been distributed as was attempted to 
be done. The car would have been taken out of the 
train, even had its defects been such as to require its 
removal to the repair track ; and it was not incumbent 
on the conductor to notify the deceased of such defects. 

The inspection and marking of the cars was not for 
the warning and benefit of switchmen, but to indicate 
wrhere they must be taken. Whatever their condition 
was, it was a part of the duty of the switchmen to han- 
<dle them. There is more or less danger attached to this. 

While it is the general rule that the master must fur- 
nish a safe place to work and safe appliances, the rule 
<!annot be of universal application. It is held not to ap- 
ply in cases of working of mines, when the "very work 
the servants are employed to do consists in making a 
dangerous place safe, or in constantly changing the 
•character of the place for safety as the work progres- 
ses.'' Heald v. Wallace, 109 Tenn., 364, 71 S. W., 84; 
^mith V. Coal d Iron Co., 115 Tenn., 543, 92 S. W., 62. 

Discussing the cases on this subject, it is said, in 1 
Xabatt on Master and Servant, section 268 : 

"These decisions proceed upon the broad ground that 
employers cannot be required to warn their men of 
-every transitory risk, when the only thing the men do 



412 TENNESSEE EEPOETS. [119 Tenn. 

Norman y. Railroad. 

■A ' 

not know is the precise time when the danger will su- 
pervene^ nor when the actual danger which caused the 
injury was due to transitory occurrence of such a na- 
ture that the plaintiff must have known that it would 
probably happen from time to time." 

The rule requiring the master to furnish safe place 
and safe appliances is earnestly ui^ed and relied on by 
counsel for plaintiff. Its inapplicability to facts simi- 
lar in many respects to those of this case is forcibly and 
aptly illustrated by the opinion of Judge Lurton in the 
case of Chesapeake d Ohio R. R. Go. v. Hennessey, 96 
Fed., 713,38 0. C. A., 307. 
In that case the plaintiff, Hennessey, was employed as 
! a switchman in the defendant's yards^ and it was a part 

I of his duty to handle defective cars. He was injured 

I while making a coupling to a damaged car, of which 

he had no actual knowledge or. notice. There were two 
questions in the case upon which the company's liability 
depended. The first was whether the company, was 
negligent in "permitting the car in question to be and re- 
main in the damaged and dangerous condition it was in 
when Hennessey in the course of his duty undertook to 
couple it to another car. Second, whether the company 
was negligent in not giving to Hennessey notice of that 
condition before allowing him to make the coupling. On 
the first question it was held that a switchman employed 
by the railroad company in its switch-yards at the end of 
a division, where trains were inspected and defective 
cars taken out and placed on side tracks for repair or 



11 CJates] SEPTEMBER TERM, 1907. 413 

Norman t. Railroad. 

removal to the shop, and whose daily duty it is to 
couple and handle such defective cars, assumes the extra 
risk due to their defective condition, and which is neces- 
sarily incident to his employment. In discussing this 
question, Judge Lurton uses the following language, 
which is pertinent to the case under investigation : 

"That a railway company is under obligation to its 
employees to exercise every reasonable precaution to 
see to it that damaged cars are not admitted into its 
trains is well established. . . . That employees may 
ordinarily rely upon this being the case is also elemen- 
tary. The rule stated is but an application of the gen- 
eral rule that the master personally owes to the servant 
the duty of using care and caution in providing for his 
use reasonably safe instrumentalities of service. . , . 
This, as to railway companies, involves the duty of in- 
spection and of removing from trains all cars found de- 
fective Unless damaged cars are removed from the 
trains wherein they have become damaged, and placed 
where they can be repaired, how is the master to provide 
reasonably safe cars to those servants who are engaged 
in the operation of his trains, and who have a right to 
rely upon the master to see that defective cars are not 
admitted to its trains, or continued in use after they be- 
come damaged? The rule is well settled that if the 
work of an employee consists, in whole or in part, in 
dealing with damaged or defective cars, and which by 
the very nature of his occupation he must know, or 
have reason to know, are unsafe and dangerous, he volun- 



414 TENNESSEE BEPOETS. [119 Tenn. 

Norman y. Railroad. 

tarily assumes the risks and hazards which are incident 
to the duty he has engaged to perform. It is not a case 
where dangerous or defective instrumentalities are sup- 
plied by the master to be used in his work, and where 
notice of such danger should be given, but a case where 
the instrumentalities to be handled and worked with or 
upon are understood to involve peril and to demand un- 
usual care. In such cases the risk is assumed by the 
servant as within the terms of his contract and compen- 
sated by his wages.*' 

It can make no difference whether the car was marked 
by the Inspector for the particular defect or not. It wa» 
a part of the business of deceased to handle it, whatever 
its condition. He knew that, whether defective or not,, 
it might not uncouple, and therefore he must look for a 
jerk, and be prepared for it. 

The case of Railway Co. v. Behymer, 189 U. S., 468^ 
23 Sup. Ct., 622, 47 L. Ed. 905, is cited by counsel for 
plaintiff as an authority upon the question of the as- 
sumption by the brakeman of the risk of the jerking, of 
the cars. 

In tliat case there was verdict and judgment in favor 
of plaintiff in the State court of Texas, and the case waa 
carried to the supreme court of the United States by 
writ of error. The plaintiff, a brakeman, was ordered by 
the conductor of a local freight to get upon some cars 
standing on the siding and to let off the brakes, so that 
the engine might move them to the main ti*ack. The 
top of the cars was covered with ice, as all concerned 



11 Cates] SEPTEMBEE TERM, 1907. 41i> 

Norman y. Railroad. 

knew. He obeyed the orders. The engine picked up the 
cars, moved to the main track, and stopped suddenly. 
The jerk caused by the sudden stop upset plaintiflF. The 
bottom of his trousers caught in a projecting nail on the 
running board, and he was thrown between the cars. 

Plaintiff's claim is based upon negligence In stopping^ 
the car so suddenly, with a knowledge of his position^ 
in slippery condition of the roof and the projection of 
the nail, which increased his danger and contributed ta 
his fall. Stress is^laid by the court upon the fact that by 
a statute of Texas, if there was negligence, the fact that 
it was the negligence of a fellow servant was not a de- 
fense. The court says : 

"The fundamental error alleged in the exceptions to- 
the charge is that the court declined to rule that the 
chance of such an accident as happened was one of the 
risks that plaintiff assumed, or that thequestion whether 
the defendant was liable for it depended on whether the 
freight train was handled in the usual and ordinary way. 
Instead of that the court left it to the jury to say wheth- 
er the train was handled with ordinary care; that is,. 
the care that a person of ordinary prudence would use 
under the same circumstances. This exception needs no- 
discussion. The charge embodied one of the common- 
places of the law." 

It is insisted by counsel for plaintiff that the Texaa 
statute cuts no figure in the case. We think it was con- 
trolling, for the main questions to be submitted to the 



416 TENNESSEE REPORTS. [119 Tenn. 

Norman v. Railroad. 

jury were whether the engineer negligently backed the 
train in view of the peculiar conditions existing at the 
time, and whether the inspector was negligent in leav- 
ing the projecting nail in the running board. If n^li- 
gence in either of these particulars contributing to the 
injury be shown, under the Texas statute, the defendant 
would be liable; and the same rule would apply if the 
conductor gave a negligent order. So there were very 
material questions of fact to go to the jury. The court 
further says: # 

"No doubt a certain amount of bumping and jerking 
is to be expected on freight trains, and under ordinary 
circumstances cannot be complained of, yet it can be 
avoided if necessary, and, when the particular and 
known condition of the train makes a sudden bump ob- 
viously dangerous to those known to be on top of the 
cars, we are not prepared to say that a jury would not be 
Avarranted in finding that an easy stop is a duty." 

As the engineer backed the train. Gates, the conductor, 
was at his place to shift the lever, when he found it 
was disconnected from the coupling pin. He says: 

"And when I got the slack, I reached after the pin as 
I usually do very often, and when I reached after the pin 
he [engineer] had just caught the slack against the pin, 
and I couldn't get it up. . . . And when I reached 
after the lever, I grabbed for it, but didn't see it; and, 
when I reached after it, there was so much slack agayist 
it that I couldn't pull the pin from the car." 

Had the chain not been broken, he could have lifted 



11 Gates] SEPTEMBER TERM, 1907. 417 

Norman v. Railroad. 

the pin without going between the cars, and would all 
the time be in sight of the engineer. When the coupling 
appliance is in good order, the lever still will not raise 
the pin, unless he works it just as the slack comes. Af- 
ter the lever failed to work in this instance, he stepped 
between the cars. 

In this connection, plaintiff introduced a rule of the 
company, the substance of which is to prohibit em- 
ployees from going between the cars when in motion. 
If anything connected with the coupling apparatus be 
defective, the employee must not attempt to make the 
coupling, but must make report of same. Conductors 
and yard foremen are required to see that trainmen 
and yardmen do not violate these instructions. 

The fact that the conductor violated the rule of the 
company, by going between the cars in order to un- 
couple, cannot affect the merits of this case. By that 
act he simply took upon himself the risk of injury, and 
the rule in this particular instance was for his own pro- 
tection. It could not in any way contribute to the death 
of deceased, but exactly the contrary; for if, by this, he | 

had succeeded in making the uncoupling, there would ' 

have been no jerk of the car. i 

It is next insisted on behalf of plaintiff that this car \ 

was used in interstate traffic, and that the case falls i 

within the federal statute forbidding the use of cars 
without automatic couplers, and that defendant was neg- 
ligent in having its employees to handle this car before 
this coupling was made to comply with the federal stat- 
119 Tenn.— 27 



418 TENNESSEE REPORTS. [119 Tenn. 

Norman v. Railroad. 

ute. The statute referred to is Act of Cong., March 2, 
1893, c. 196, section 2, 27 Stat., 531 [U. S. Comp. St, 
1901, p. 3174] : 

"It shall be unlawful for any such common carrier to 
haul or permit fo be hauled or used on its line, any 
car used in moving interstate traffic not equipped with 
couplers coupling automatically by impact, and which 
can be uncoupled without the necessity of men going 
between the ends of the cars." 

Section 8: 

"Any employee of such common carrier who may be 
injured by any locomotive, car, or train in use contrary 
to the provisions of this, act, shall not be deemed thereby 
to have assumed the risk thereby occasioned, although 
continuing in the employ of such carrier after the un- 
lawful use of such locomotive, car, or train had been 
brought to his knowledge." 

In support of plaintiff's contention, the two following 
cases are cited: United States v. Oreat Northern Ry. 
Co. (D. C), 145 Fed., 438; United States v. Southern 
Pacific Co. (D. C), 154 Fed., 897. 

Both cases were actions brought to recover penalties 
provided by the statute. In the former case, the sole 
question decided is that the act of congress applies to 
all cars regularly used on any railroad engaged in inter- 
state commerce, not only while actually in use in such 
commerce, but at all times when in use on such road. 
The question arose upon demurrer to certain causes of 
action. Whitson, District Judge, says : 



11 Gates] SEPTEMBER TERM, 1907. 419 

Norman v. Railroad. 

"To sustain the demurrer would be to hold that it is 
beyond the power of congress to control the instrumen- 
talities through which interstate commerce may be car- 
ried on. But the prerogative necessarily carried with it 
the authority to prescribe the rules and regulations 
which shall apply to those engaged in it Illustrations 
of the futility of any effort on the part of congress to 
exercise its constitutional powers in this regard, if the 
contention made by the defendant can be sustained, are 
not far to seek. An interstate carrier might haul traffic 
from one State to another, then transfer it, and from 
thence transport it, without any of the safety appliances 
provided by law." 

The latter case (United States v. Southern Pacific 
Co.) was also on demurrer. There was prosecution for 
violation of the safety appliance act, in that the chains 
connecting the lock pins to the uncoupling levers were 
broken, or missing, as in the case at bar; and, while 
it is held that it was no defense that the car was moved 
by defendant without knowledge of the defects, Wolver- 
ton. District Judge, says: 

"Admittedly, if a breakage occurs between stati6ns 
where repair shops are located, and the repairs cannot be 
made without taking the car to such a place, .the com- 
pany cannot be held liable until it has had an oppor- 
tunity of making the repair, and in that event it would 
be justified in hauling the car in the train to the suc- 
ceeding station where such repairs could be made." 



420 TENNESSEE KEPORTS. [119 Tenn. 

^^^. Norman v. Railroad. 

We have thus referred to these cases, since learned 
counsel has so earnestly pressed the matter of the appli- 
cability of the act in question to this case. But no such 
case as is contended for is made by the declaration. It 
is only alleged incidentally that defendant was a com- 
mon carrier operating numerous lines of railroad ^^run- 
ning to divers places and i>oints in and beyond the State 
of Tennessee." But there is even no averment that 
the particular car referred to as defective was being 
used in the carriage of interstate traffic, and thus no no- 
tice is given defendant that it will be required to meet 
the case now contended for. The acts of negligence 
averred are only those referred to in another connection. 

Assuming it to be proven that these cars were used in 
moving interstate traffic which does not definitely aj^ 
pear in the proof, and that the declaration avers a case 
under the statute, the statute has no application to the 
facts of this case. The couplers are shown to be auto- 
matic couplers. They were out of repair, and the defect 
was of such slight character that it could be repaired 
with the car in the yards, without the necessity of being 
taken to the shops. Had the defect been observed by 
the inspector before the car was detached from the train, 
the car ^ould still have been detached and distributed, 
and the repairs thereafter made. To do this switching, 
when the defect is first discovered as the switching is be- 
ing done, the failure to repair it at once without attempt- 



11 Gates] SEPTEMBEB TERM, 1907. 4l»l 

Norman ▼. Railroad. 

ing to move the car to another place in the yards would 
not in any sense be a violation of the statute. No mat- 
ter how skillfully machinery may be constructed, it will 
get out of repair, and a reasonable time within which to 
make the repair will be allowed. In this instance the 
discovery of the defect is simultaneous with the injury, 
and there is no evidence that the failure to discover it be- 
fore the car reached the yards was negligence. 

Learned counsel for plaintiff has submitted an ex- 
haustive brief, citing and discussing numerous decis- 
ions, state and federal,* on the subject of peremptorily 
directing verdicts. While the practice in this State is 
of recent origin, it has long been the practice in other 
jurisdictions, and its beneficial results in reaching an 
end of litigation have been demonstrated. The proper 
application of the rule in particular cases to which it is 
applicable is not in any sense an invasion of the province 
of the jury, because it cannot be applied if there be any 
material controverted fact to be found by the jury. 

Our first case on the subject is Greenlaw v. Railroad, 
114 Tenn., 187, 86 S. W., 1072, opinion by Mr. Justice 
Wilkes, in which it is said : 

"There are a number of cases in our books which seem 
to hold that the practice of directing a verdict does not 
prevail in Tennessee. Undoubtedly in other jurisdic- 
tions the weight of authority is that such a practice is 
proper and conducive to the prompt and proper determ- 
ination of legal controversies. . . We think, how- 
ever, that, wherever the jury is directed to return a ver- 



422 TENNESSEE REPORTS. [119 Tenn. 

Norman v. Railroad. 

diet, it should be upon a consideration of the entire evi- 
dence in the case, and not upon any detached portion of 
such evidence." 

In Tijrus v. Railroad, 114 Tenn., 593, 86 S. W., 1074, 
Mr. Justice Neil delivering the opinion of the court, it is 
shown that the trend of our own decisions has been in 
this direction, and they themselves demonstrate the ne- 
cessity for the adoption of the rule. The rule as laid 
down in that case is the legitimate deduction from those 
decisions : 

"The following we conceive to, be. a sound statement of 
the matter within the restrictions of our constitution: 
Where there is no controversy as to any material fact, 
there is nothing for the jury to find. The question is 
then one solely of law for the court, and in such a case 
the court may instruct the jury to return a verdict in ac- 
cordance with his view of the law applicable to such as- 
certained or uncontroverted facts. There can be no con- 
stitutional exercise of the power to direct a verdict in 
any case in which there is a dispute as to any material 
evidence, or any l^al doubt as to the conclusion to be 
drawn from the whole evidence, upon the issues to be 
tried." Tyrus v. Railroad, 114 Tenn., 593, 86 S. W., 
1077. 

In Traction Co. v. Brown, 115 Tenn., 329, 89 S. W., 
320, opinion by Mr. Justice Wilkes, it is said : 

"A motion for peremptory instructions is not one 
which addresses itself to the discretion of the court, 
but one which presents a question of law ; and the crucial 



11 Gates] SEPTEMBER TERM, 1907. 423 

Norman v. Railroad. 

question in the case is whether there is any determina- 
tive evidence upon which the jury must base a verdict in 
favor of the party who produces it. 

". . . . When a given state of facts is such as 
reasonable men may fairly diflfer upon the question as to 
whether there was negligence or not, the determination 
of the matter is for the jury. It is only where the facts 
are such that all reasonable men must draw the same 
conclusions from them that the question of negligence is 
ever considered one of law for the court." 

In Kijiney v. Railroad Co,, 116 Tenn., 451, 92 S. W., 
1116, it is said: 

"Tliere is no power in the trial judge to direct a ver- 
dict in any case in which there is-a dispute as to any 
material, determinative evidence, or any doubt as to the 
conclusion to be drawn from the whole evidence upon 
the issues to be tried." 

Learned counsel for plaintiff lays stress upon the de- 
cisions relating to this practice of the United States cir- 
cuit court of appeals of the sixth circuit, stating that 
they can be safely followed. A number of the cases of 
that court are collated and discussed, and it appears 
from them, which counsel admit, that there is no conflict 
I)etween the decisions of that court and of this court. 

It is alleged that one of the chief difflculties in the ap- 
plication of the rule is the disposition of the trial judge 
to weigh the evidence, pass upon its value, and thus in- 
vade and encroach upon the just province of the jury. 
The fact that the trial judge may sometimes make im- 



424 TENNESSEE BEPOSTS. [119 Tenn. 

Norman y. Railroad. 

proper application of a proper rule of practice can sure- 
ly constitute no argument against the rule. The same 
may be said of many other rules. 

We think that upon giving to the evidence in this case 
the construction most favorable to the plaintiff, and i 

from that evidence and the inferences justly to be drawn 
therefrom in his favor, there was no controverted ques- 
tion of fact to be submitted to the jury, and that the judg- 
ment of the law upon the whole evid^ice is that plaintiff 
has not made out a case of n^ligence against defendant. 
Such is pre-eminently a proper case for the trial judge to 
direct a verdict in favor of defendant And the judg- 
ment of the court of civil appeals, affirming the judg- 
ment of the circuit^ court, is affirmed. 



11 Gates] SEPTEMBER TERM, 1907. 425 

Price V. Clapp. 

0. lu Pbice €t ux. V. R. T. Clapp.* 
(Knoxville. September Term, 1907.) 

1. VBBDIOT. Not Mt aside in supreme court for no evidence 
when there is some evidence to support it. 
Where the testimony furnishes some evidence to support the 
verdict of the Jury, it will not he set aside in the supreme court 
on the ground that there is no evidence to support the same. 
iPogt, pp. 429. 430.) 

8. UBBL. Evidence of other similar acts is incompetent, and it» 
admission is reversible error. 
In an action for libel alleged to have been committed by an 
anonymous letter written by the defendant, charging the plain- 
tift to be dishonest, evidence that defendant had previously 
admitted the writing of other anonymous letters, and had rep- 
resented herself as being "something like a white cap," was In- 
competent as irrelevant to the issues, and was inadmissible to 
show knowledge, intent, and purpose, under the rule admitting 
evidence of other oftenses in certain criminal cases for the 
purpose of showing guilty knowledge or intent (Post, pp. 
430432.) 

8. XVIDENOX. Admission of incompetent evidence not clearly 
harmless, but prejudicial, is reversible error. 
Where it is not clear that defendant was not prejudiced by the 
erroneous admission of incompetent evidence, but, it seems, 
that the evidence very clearly influenced the jury and added 
materially to the amount of the damages awarded, its admission 
constitutes reversible error. {Post, pp. 431, 432.) 

Cases cited and approved: Lowry v. Railroad, 117 Tenn., 607, 
515, and the cases there cited. 



*As to evidence of other crimes in criminal case, see note to 
People V. Molineux (N. Y.), 62 L. R. A., 193. 



426 TENNESSEE REPORTS. [119 TeniL 

Price V. Clapp. 

•4. LIBEL. £ule of nominal damans does not apply where 
plaintiff was humiliated, though not discharged from his em- 
ployment for some time. 
In an action for libel for writing an anonymous letter to plain* 
tiff's employer, charging the plaintiff to be dishonest, and re- 
sulting in his being immediately denied the confidence of his 
employer and in his being humiliated, the rule of nominal 
damages does not apply, though he remained in his employ- 
ment for some time thereafter. {Post, p. 432.) 

9. SAME. Punitive or vindictive damages may be allowed, when 
In an action for libel, where the charge imputes moral turpitude, 
punitive or vindictive damages may be allowed. {Post, pp. 
432, 433.) 
Case cited and approved: Saunders v. Baxter, 6 Heisk., 384. 

€. SLANDER. Wife cannot be sued for slander uttered by her 
without the joinder of her husband. 
For a slander uttered by the wife alone, without her husband's 
knowledge, or participation, she cannot be sued alone, but must 
be sued jointly with her husband, who must be joined with her 
for the sake of conformity. {Post, p. 434.) 

Case cited and approved: Lee v. Atchley, MS. 

7. BLANDEB. Husband is liable for compensatory damages 
only, and not for punitive damages, for slander uttered by 
wife, in action against both for her slander. 
For a slander uttered by the wife without her husband's knowl- 
edge or participation, in action against them Jointly, he is 
liable for compensatory damages only, and not for punitive or 
vindictive damages, though she may be liable for the punitive f 

or vindictive damages. {Post, pp. 433-435.) 

Case cited and approved: Lee v. Atchley, MS. 

3. TORTS. Solid verdict against all joint tort feasors, when. 

As a general rule, a verdict which distributes the liability between 
joint tort feasors, according to jury's impression as to the 



11 Gates] SEPTEMBER TERM, 1907. 427 

Price V. Clapp. 

varying degrees of culpability of the respective parties, is not 
proper, on the ground that all who participate are equally liable 
to the injured person for the entire amount of the verdict 
(Post, p, 435.) 

Case cited and approved: Railroad v. Jones, 100 Tenn., 512. 

9. LIBEL. Husband is liable with wife for compensatory dam- 
agfes, but not for punitive damages for which she is liable. 
In an action against the husband and wife for a libel committed 
by the wife alone, they are both Jointly liable for the compen- 
satory damages, for which the wife is liable, and she alone is 
liable for the additional exemplary or punitive damages properly 
allowable, and verdicts and judgments should be framed ac- 
cordingly. (Post, pp, 432-437.) 

Code cited and construed: Sees. 4700, 4701, 4702 (S.); sees. 
, 3686, 3687, 3688 (M. ft V.) ; sees. 2972, 2973, 2974 (T. ft S. and 
1858). 

Cases cited and approved: Darwin v. Cox, 5 Terg., 257; Car- 
penter V. LiCe, 5 Yerg., 266; Railroad v. Gore, 106 Tenn., 390; 
Lee V. Atchley, MS.; Wilson v. Freedley (C. C), 125 Fed.. 962; 
129 Fed., 835; Hill v. Duncan, 110 Mass., 238; Austin v. Wil- 
son, 4 Gush., 273; Smith v. Taylor. 11 Ga., 20; Baker v. Young, 
44 111., 42, 47; Zeliff v. Jennings, 61 Tex., 458. 



FROM KNOX. 



Appeal in error from the Circuit Court of Knox 
County to the Court of Civil Appeals,, and Certiorari 
from the Court of Civil Appeals.— Jos. W. Sneed^ Cir- 
cuit Judge. 



428 TENNESSEE REPORTS. [119 Tenn. 

Price V. Clapp. 

Shields, Gates & Mountcastlb, for Price. 
Roberts & Habbis, for Clapp. 



Mb. Justice Neil delivered the opinion of the Court. 

R. T. Clapp brought this suit in the circuit court of 
Knox county against G. L. Price and his wife, Annie B. 
Price, to recover the sum of f5,000 damages aU^ed 
to have been suffered by the plaintiff Clapp by reason of 
an anonymous letter averred to have been written by 
Price and wife to Clapp's employer, one Crouch, in 
which the writer is alleged to have charged Clapp with 
being a thief. The declaration charges in substance: 

(1) That on or about the 19th day of March, 1906, 
the defendants, Price and wife, wrote and mailed to 
Mr. Will Crouch the following* letter, to wit : 

"I understand R. Clapp is at work in your flower es- 
tablishment. I want to give you a little warning. You 
better arrange money affairs so he cannot handle any 
cash. • If you do, you will come up short. I know 
what I say." 

(2) That the letter so addressed to Will Crouch was 
intended for, and was in fact delivered to, one Arthur 
Crouch, plaintiff's employer, and that by R. Clapp was 
meant the plaintiff, R. T. Clapp, who was then in the em- 
ploy of the said Arthur Crouch, 

(3) That by the letter the defendants intended to 
charge, and did charge, and assert falsely, tliat the plain- 
tiff below was dishonest and was a thief. 



11 Gates] SEPTEMBER TERM, 1907. 429 

Price T. Clapp. 

(4) That, by reason of the writing and publication 
of the libelous letter, plaintiff was discharged and turn- 
ed out of his position, and brought into public disre- 
pute. 

The defendants, Price and wife, pleaded the general 
issue of not guilty. 

The case was tried in the circuit court before a jury 
and resulted in a verdict against the defendants, O. L. 
Price and his wife, Annie B. Price, for the sum of |1,- 
000. A motion for a new trial was entered, and was 
overruled by the court, and thereupon the. case was ap- 
pealed to the court of civil appeals, and in that court 
the judgment of the court below was affirmed, and the 
-case was brought to this court by the writ of certiorari. 

The errors assigned are as follows: 

First, that there is no evidence to support the verdict; 
-second, that the trial judge erred in permitting the wit- 
ness Mrs. R. T. Clapp to testify, over the objection of G. 
L. Price and wife, that Mrs. Price admitted to the wit- 
ness that she had written anonymous letters other than 
the one sued on to one of her nephews-in-law and his 
mother; third, because the damages are excessive, indi- 
cating passion, caprice, and prejudice on the part of the 
jury; fourth, that the circuit judge erred in charging the 
jury that they might award punitive damages. 

The first error assigned is overruled. We are of the 
opinion that the testimony both of Mr. Clapp and his 
wife furnishes some evidence that the letter complained 
of was written by Mrs. Price. 



430 TENNESSEE REPORTS. [119 Tenn. 

Price V. Clapp. 

The second assignment is based upon the admission 
of the following evidence to the jury over the objection 
of the plaintiffs in error : 

"Q. Did Mrs. Price ever admit to you about writing 
other anonymous letters? A. Yes, sir. Q. I will 
ask you if she ever told you who she wrote them to. A. 
Yes, sir; she did. Q. What relation to her, if any, were 
the people she wrote them to? A. One was a nephew- 
in-law. Q. Is that the same relation Mr. Clapp is? A. 
Yes, sir ; and the other one was his mother. Q. What did 
she represent herself as being? A. Something like a 
white cap." 

This evidence was objected to because irrelevant to 
the issue in this case. The objection was overruled by 
the circuit judge, and the witness was permitted to an- 
swer as above. 

We are of the opinion that this testimony was incom- 
petent on the ground stated in the objection. It was 
certainly wholly immaterial to the determination of 
the issue before the court whether Mrs. Price had writ- 
ten other letters or not. An effort is made to sustain the 
competency of the evidence on the theory of those cases 
wherein evidence of other crimes committed by a person 
on trial in a criminal case is allowed to go to the jury for 
the purpose of showing knowledge, intent, and purpose 
in respect of the particular kind of acts under exam- 
ination in the cases referred to. We think the principle 
applied in the cases instanced is wholly inapplicable to 
the present controversy. Here there can be no doubt 



11 Gates] SEPTEMBER TERM, 1907. 431 

Price V. Clapp. 

whatever of the intent or purpose with which the letter 
was written, nor is there any question of a scheme or 
plan. The only matter of inquiry under the evidence 
was whether Price and wife were guilty of writing this 
letter. Considering this letter, the fact that she had 
written other letters to other i)eople could be of no sort 
of importance, and could throw no light whatever upon 
the question. The court of civil api)eals in its opinion 
said in substance, that the evidence was incompetent, 
but its admission would not be sufficient ground for re- 
versal, inasmuch as it could not have harmed the plain- 
tiffs in error. We think this was an incorrect view. The 
rule upon this subject is that where incompetent evi- 
dence has been admitted, and this court can clearly see 
that in no aspect of the case could the parties objecting 
have been injured by such testimony, then there can be 
no reversal for the error in admitting it. The cases upon 
this subject will be found collected in Lowry v. Railroad, 
117 Tenn., 507, 515, 101 S. W., 1157, et seq. Not only 
can we not be so certain that there was no injury inflict- 
ed, but it seems very clear to us that the evidence re- 
ferred to was very harmful to the plaintiff's in error, 
since it no doubt inflamed the jury, and added materially 
to the amount of damages which they allowed. This 
evidence placed the plaintiffs in error, or, rather, Mrs. 
Price, before the court and jury in the aspect of a com- 
mon libeler, who should not only be compelled to re- 
spond to the injury done to the defendant in error. 



432 TENNESSEE REPORTa [119 Tenn. 

Price V. Clapp. 

1)ut should be punished for her other infractions of good 
•order against other persons. 

The second assignment is therefore sustained. 

As to the third assignment, we deem it proper to say 
only this: Since the judgment must be reversed, and 
the cause remanded to the lower court for a new trial, 
for the error mentioned in the second assignment, and 
for that mentioned in the fourth assignment, which we 
shall presently consider, we do not deem it necessary or 
proper to pass upon the evidence as to the amount of the 
verdict further than to say that we do not think the sug- 
.gestions contained in the brief under the third assign- 
ment, to the effect that only nominal damages should be 
allowed, can be entertained. It is true that Mr. Clapp, 
remained with Mr. Crouch as his employee for son^e time 
:after the letter was received, still it was testified to by 
Mr. Clapp that the keys were immediately taken from 
liim, and he was thus denied the confidence of his em- 
ployer, and humiliated. We do not think that under such 
circumstances a verdict for mere nominal damages 
would be sufficient. 

Under the fourth cassignment, objection is made to the 
charge of the circuit judge upon the subject of punitive 
damages. The portion of the charge to which objection 
is raised is in the following language: 

"In the event you find for the plaintiff in this case, 
you can also award punitive or vindictive damages. In 
other words, any charge that imputes moral turpitude is 
s, case that the jury may in its discretion and under the 



11 Gates] SEPTEMBER TERM, 1907. 433 

Price V. Clapp. 

facts and circumstances of the case award punitive or 
vindictive damages, which is measured by no other rules 
than by considering all the facts of the case, and such 
damages as the jury thinks ought to be awarded that 
would deter any others from the commission of a like 
oflfense." 

It is not denied by counsel for the plaintiffs in error 
that in general punitive damages may be allowed in this 
i^lass of cases, and it has been so held in the case of 
Saunders v. Bdxter^ 6 Heisk., 384. The point, how- 
•ever, of the objection is that the husband was not liable 
for punitive damages, and that the charge quoted was er- 
roneous as to him.. 

We had this question before the court at the Septem- 
ber term, 1904, at this place, in the case of Thom<is Lee d 
Wife V. Adelia C. Atchley, hy Next Friend (memoran- 
dum case). In that case, in an opinion delivered by 
Beard, C. J., it was said: 

"There is no doubt that in a case where such damages 
are proper evidence of the pecuniary condition of the 
wrongdoer may be given. Diish v. Fitlthugh, 2 Lea, 307 ; 
€umberlmd Tel & Tel. Co. v. Poston, 94 Tenn., 698j 30 
S. W., 1040. But this is not that case. This suit is 
l)rought against the husband and wife for slanderous ^ 
words alleged to have been spoken by her. It is neither 
averred in pleading or pretended in evidence that the 
husband counseled or connived at their utterance. The 
declaration alleges that the wife did the wrong. This 

119 Tenn.— -28 



434 TENNESSEE REPOBffS. [119 Tenn. 

Price ▼. Cl«pp. 

is the case which the plaintiff himself made. If the dec- 
laration had allied that it was done by the wife in the 
husband's presence, or upon his demand, it would have 
been demurrable by the wife. It is because the wronj: 
complained of is the wife^s independent and personal 
act that she can be sued at all. It is well settled that 
the husband is not joined as defendant in such cases on 
the ground that the wife's misconduct is imputable to 
him, but for conformity's saka His being a defendant 
results not from his participation in the wrong, but 
from the fact that the existence of the marriage relation 
makes it impossible for the injured party to sue the wife 
alone. To reach her, the husband must be joined in the 
action. If the wife is found guilty, notwithstanding his 
innocence, the law visits the consequences on his head, 
as well as hers. But, where this is the case, does not 
the violated law exact all to which it is entitled when it 
exacts from this innocent party full compensation for 
the wrong inflicted by the wife? Upon what reasonable 
ground can it be maintained that he should be comi)elled 
to answer in exemplary damages? These are allowed 
for a wanton and flagrant wrong. Why, then, should 
they be required of one absolutely blameless, and only 
held liable on technical grounds? So it is, we think, the 
weight of authority and of sound reason that the dam- 
age recoverable against him is compensatory, and that 
vindictive damages will not be allowed. Newell, p. 365, 
and cases cited." 

This would, of course, not preclude a judgment 



11 Gates] SEPTEMBER TERM, 1907. 435 

Price V. Clapp. 

against the wife herself for punitiye damages, and 
there conld be no objection to having the verdict show 
how much was assessed on this head« 

It has been held in this State, in accordance with the 
weight of authority everywhere, that a verdict is not 
proper which distributes the liability between joint tort- 
feasors according to the jury^s impression as to the 
varying d^rees of culpability of the respective parties, 
but that all who participate are equally liable to the in- 
jured party, and he is entitled to a solid verdict against 
all the guilty ones. Railroad v. Jones, 100 Tenn., 512, 
45 S. W., 681. It has been held, however, that, where 
one of the defendants is found not guilty, a verdict may 
be rendered in favor of that one, and at the same time a 
verdict against the guilty one in favor of the plaintiff 
in the action. Darwin v. Cox, 5 Yerg., 257 ; Carpenter v. 
Lee, 5 Yerg., 266. And it has been held in Street Rail- 
way Co. V. Gore, 106 Tenn., 390, 61 S. W., 777, that, 
where several tortfeasors sued jointly, a new trial may 
be granted as to one, and there may be an appeal as to 
another, and the judgment enforced against the latter. 
But, coming more closely to this special question, it has 
been held that there may be separate findings in the 
verdict, as to different elements of recovery, against the 
same defendant even. Wilson v. Freedlet/ (C C), 125 
Fed., 962, and Id., 129 Fed., 835; 22 Am. & Eng. Encyc. 
of Law, 913, and notes thereto. 

It is true that the husband is liable for the wife^s libel 
{Hill V. Duncan, 110 Mass., 238; AuMin v. Wilson, 4 



436 TENNESSEE REPORTS. [119 Tenn. 

Price V. Clapp. 

Oiish., 273, 50 Am. Dec., 766), but she is also liable as a 
very real party. {Smith v. Taylor, 11 Ga., 20; Baker v. 
Young, 44 111., 42, 47, 92 Am. Dec., 149), and in Texas 
it is held that as between husband and wife, where a 
judgment has been rendered against them for damages 
occasioned by the wife's slander, if the husband in no 
way participates in the wrong, the separate estate of the 
wife will be applied to the payment of the judgment^ 
and, if her property is not sufficient, then resort will be 
had to the common estate, after which the separate es- 
tate of the husband may be taken. Zeliff v. Jennings^ 
61 Tex., 458. 

Under the rule above announced in Lee and Wife v. 
Atchley, we see no objection to a verdict against the hus- 
band and wife for their joint liability, and against the 
wife for such additional amount as the jury may think 
proper on the basis of punitive damages, and the framing 
of the judgment accordingly. In Shannon's Code it is 
laid down : 

"Sec. 4700. Judgment may be given for or against 
one or more of several plaintiffs, or for or against one or 
more of several defendants. 

"Sec. 4701. In such case, the verdict shall be as the 
right may appear, and shall state sei>arately any 
amount allowed to any of the parties. 

"Sec. 4702. Such and so many judgments — ^joint, sep- 
arate and cross— may be rendered as may be necessary 
to the rights of the parties, or one amount may be set off 
against another and judgment rendered for the residue, 



11 Gates] SEPTEMBER TERM, 1907. 437 

Price V. Clapp. 

or judgment may be rendered for the defendant against 
the plaintiff for any amount or balance for which it is 
found that the plaintiff is liabla'' 

For the errors committed in respect of the matters 
mentioned in the second and fourth assignments, the 
judgment of the court of civil appeals, and of the circuit 
court must be reversed, and the cause remanded to 
the circuit court for a new trial. 



438 TENNESSEE BEPOBTS, [119 Teniu 



KnoxTille t. Gasi. 



Mayok and Aldermen of Knoxyille v. W. H. Oass. 
(Knoxville. September Term, 1907.) 

L OONSTITUnOHAL IsAW. Title of a legialative Wl expraM- 
in^ a general subject need not express the means or instru- 
mentalities of accomplishing: the purpose of the act. 
If one general subject is expressed in the title of an act. It is 
not necessary that all the means or instrumentalities by which 
the general purpose of the act is to be accomplished shall 
appear, either in the title or the body of the act, provided the 
subsidiary matters are germane to the general subject ex- 
pressed in the title. {Post, pp. 440-457.) 

Constitution cited and construed: Art 2, sec. 17. 

Cases cited and approved: Cannon y. Mathes, 8 Heisk., 505, 519; 
State T. Lasater, 9 Bax., 684; State y. Fickle, 3 Lea, 79; State 
T. Tardley, 95 Tenn., 546; McElwee y. McElwee, 97 Tenn., 649; 
Ryan ▼. Terminal Co., 102 Tenn., 128; State y. Brown, 103 Tenn., 
454; State y. McMinnyUle, 106 Tenn., 884; CarroU y. Alsup, 107 
Tenn., 266; Condon y. Maloney, 108 Tenn., 83; State, ex rel., 
▼. Hamby, 114 Tenn., 868, 364. 

2. SAME. Same. Title of a legislative bill may be broader 
than the subject of legislation enacted, when. 
The constitutional provision that "No bill shall become a law 
which embraces more than one subject, that subject to be 
expressed in the title," does not apply to the title, but to the 
body of the bUl. It is no objection to the bill that its title 
is broader than the legislation contained in its body, or covers, 
or can be construed to coYer, other subjects of legislation, if 
the real subject of legislation is therein expressed and not 
obscured by foreign matters. {Po8t, p, 451.) 



11 Gates] SEPTEKBEB TEBM, 1907. 439 

KnoxYille v. Oass. 

Constitation cited and.oozustnied: Art 2, sec. 17. 

Case cited and approved: State, ex rel., t. Hamby, 114 Tenn., 
864. 

8. SAKS. Same. Same, iMiiance of bonds for municipal pur- 
poaea i« the subject expreaaed in the title and body with fuller 
detaila; case in Judgment. 
A statute (Acts 1907, ch. 361) whose caption and body author- 
ise certain municipalities to issue a certain amount of bonds 
with which to fund the floating debts of said dties, to increase 
and improve the fire departments, to widen the streets, and to 
pay damages to property holders caused by the erection of 
viaducts and bridges; and also authorize said cities to issue 
another certain amount of bonds with which to build sewers* 
contains in its caption and body but one subject of legisla- 
tion, namely, the issuance of bonds for municipal purposes, 
and therefore, it is not unconstitutional as violative of the con- 
stitutional provision that ''No bill shall become a law which em- 
braces more than one subject, that subject to be expressed 
in the titte." 

Acts cited and construed: Acts 1907, ch. 361. 

Constitution cited and construed: Art. 2, sec. 17. 



FROM KNOX. 



Appeal from the Chancery Court of Knox County.— 
Jos. W. Snbed^ Chancellor. 

J. W. CULTON, City Attorney, and S. G. Heiskell^ for 
Knoxville. 

Jno. W. Obbbn, for Gass. 



440 TENNESSEE REPOEfTS. [119 Tenii^ 

Knoxville y. Gass. 

Mr. Justice MgAlisteb delivered the opinion of the 
Oonrt. 

This case was presented to the chancellor on a stipula- 
tion of agreed facts in accordance with the provisions 
of section 5206 of Shannon's Code, and the only question 
for determination is in respect of the constitutionality 
of chapter 361, p. 1203, of the Acts of 1907, entitled : 

"An act to authorize municipalities of Tennessee hav- 
ing a population by the census of 1900, or any subse- 
quent federal census, of not less than thirty thousand 
nor more than forty thousand, to issue |165,000 of cou- 
pon bonds, with which to fund the floating debts of said 
cities, to increase and improve the Are department, to 
widen the streets, and pay damages to property holders 
caused by the erection of viaducts and bridges; also ta 
authorize said cities to issue |15,000 of coupon bonds 
with which to build sewers. 

"Section 1, Be it enacted by the general assembly of 
the State of Tennessee, that all municipalities in Ten- 
nessee having a population by the federal census of 1900 
or any subsequent federal census of not less than 30,000 
nor more than 40,000, be, and they are hereby authorized 
and empowered to issue in their corporate capacity cou- 
pon bonds, to be signed by the mayor and countersigned 
by the recorder, in the manner and under the restric- 
tions hereinafter provided to the amount of one hundred 
and sixty-five thousand dollars (|165,000), to be appro- 
priated to fund tlie floating debts of said cities, increase 



11 Gates] SEPTEMBER TERM, 1907. 441 

KnoxYille v. Gass. 

and improve their fire departments, widen streets, and 
pay damages to property holders caused by the erection 
of viaducts and bridges: provided, that said bonds or 
proceeds thereof shall be issued exclusively for the pur- 
pose above set out and in such manner within the cor- 
porate limits of said cities as may hereafter be deter- 
mined upon by the mayor and aldermen of said cities- 

"Sec. 2. Be it further enacted, that the cities afore- 
said shall be, and they are hereby, authorized and em- 
powered to issue an additional sum of fifteen thousand 
dollars (|15,000) in bonds for the puri)ose of building 
sewers, which bonds .shall be signed by the mayor and 
countersigned by the recorder, and the proceeds thereof 
shall be used exclusively for the purpose of building 
sewers and at such points in said cities as may be here- 
after determined upon by the board of mayor and alder- 
men of said cities. 

"Sec. 3. Be it further enacted, that the bonds issued 
under the first and second sections of this act shall be of 
such denomination and bear such rate of interest not to 
exceed four and one-half per cent, as may be determined 
upon by the mayor and aldermen of said cities, and said 
bonds shall be issued, payable at the end of thirty years 
from date of issuance, and interest and principal shall 
be payable in gold at such places within or without the 
State of Tennessee as the mayor and aldermen of said 
cities may determine, and the interest shall be payable 
at such times as* the mayor and aldermen may deter- 



442 TENNESSEE BEPORTS. [119 Tenn. 

KnoxYille v. Gass. 

miney and said bonds shall recite the date of issnance^ 
the date of matority, the fact that a special tax has been 
authorized to be levied to create a sinking fund for their 
payment, and shall include such other matters of law 
or fact as the mayor and aldermen of said cities may 
determine to be essential to protect the respective in- 
terests of said cities and the purchasers of said bonds, 
4ind said bonds shall be sold by the mayor and finance 
<!ommittee of said cities. 

"Sec. 4. Be it further enacted, that the bonds pro- 
vided for and issued under this act shall in no case be 
sold for less than par, and the coupons attached thereto 
shall at maturity be received by the mayor and aldermen 
of said cities for all taxes due said cities, except sinking 
fund taxes levied for the retirement of this or any other 
l)ond issue of said cities and except for school taxes. 

"Sec. 5. Be it further enacted, that as soon as the 
bonds herein authorized or any portion thereof shall have 
been issued thereunder the mayor and aldermen of said 
cities shall provide by ordinance a sinking fund where- 
with to retire said bonds, and said funds shall be used 
exclusively for sinking fund purposes, and be sufficient, 
with its accumulations, as nearly as may be estimated, 
to meet and retire the principal indebtedness at matu- 
rity, and said sinking fund shall be intrusted to the 
management of the sinking fund commissioners now ex- 
isting in said cities or may hereafter be appointed from 
time to time. 



11 Gates] SEPTEMBER TERM, 1907. 443 

KnozTllIe v. Qass. 

"Sec. 6. Be it further ^enacted, that all laws op 
parts of laws in conflict with this act be, and the same 
are hereby, repealed, and that this act take effect from 
and after its passage, the public welfare requiring it." 

It may be observed that this act, while passed in the 
form of a general law, is only applicable, on account of 
its limitations as to population, to the city of Knox- 
TiUe. 

In accordance with the provisions of the act, the may- 
or and aldermen of the city of Knoxville have issued 
said series of bonds, the validity of which has been 
challenged on the ground that the title to said act em- 
braces more than one subject and is therefore violative 
■of article 2, section 17, of the constitution of Tennessee, 
which provides : "No bill shall become a law which em- 
braces more than one subject, that subject to be express- 
ed in the title.'' 

The legal criticism on the title is that it provides for 
ilie issuance of {165,000 of coupon bonds to fund the 
floating debts, to increase and improve the fire depart- 
ments, to widen streets, and pay damages to property' 
holders caused by the erection of viaducts and bridges 
and that the enumerated purposes for which this series 
K)f bonds may be issued constitute one subject, and that 
the title then proceeds to introduce another subject in 
the following clause: "Also to authorize said cities 
to issue fifteen thousand dollars of coupon bonds with 
•which to build sewers.? 



444 TENNESSEE REPORTS. [119 Tenn. 

KnoxYille v. Qass. 

It is said that these two sabjects are each distinct and 
are not germane to each other. The section of the consti- 
tution invoked in the present case has frequently been 
before this court for construction as applied to particu- 
lar acts passed by the general assembly. The uniform 
holding of this court has been that, if one general sub- 
ject is expressed in the title, it is not necessary that all 
the means or instrumentalities by which the general pur- 
pose of the act is to be accomplished should appear, 
either in the title or in the body of the act, provided the 
subsidiary iliatters are germane to the general subject. 
The course of judicial decision on this subject may be 
illustrated by the following cases: 

In Cannon v. Mathes, 8 Heisk., 505, the act under con- 
sideration was entitled : "An act to fix the state tax on 
property." Section 4 of that act increased the tax on all 
privileges fifty per cent, upon the existing basis. It 
was held that a title purporting that an act is to impose 
a tax on property is sufficient to support a law embrac- 
ing taxes on privileges as well as on property. It was 
said in that case, quoting with approval the text of 
Cooley on Ck>nstitutional Limitations, that: 

"The general purpose of these provisions is accom- 
plished when a law has but one general subject, which is 
fairly indicated by its title. To require every end and 
means necessary or convenient for the accomplishment 
of this general object to be provided for by a separate act 
relating to that alone would not only be unreasonable, 



11 Gates] SEPTEMBER TERM, 1907. 445 

Knoxville v. Oass. 

but would actually render legislation impossible." 

He adds : 

"The generality of a title is no objection to it, so long 
as it is not made a cover to legislation incongruous in it- 
self, and which by no fair intendment can be considered 
as haying a necessary or proper connection. The legis- 
lature must determine for itself how broad and compre- 
hensive shall be the object of a statute, and how much 
particularity shall be employed in the title in defining 

Referring to the particular statute under considera- 
tion Judge Nicholson said : 

"The general subject of the act is revenue, and each 
and every section has direct reference to the subject of 
revenue in its different phases. It cannot be said that 
there is the least incongruity among the provisions of 
the four sections. They have a natural, if not a neces- 
sary, connection with and dependence upon each other. 
Revenue is the general subject of the act. Its amount 
and its disbursement from the treasury are the special 
objects provided for. It is clear that the act is not ob- 
noxious to the objection that it embraces more subjects 
than one.'' 

In State v. McMinnville, 106 Tenn., 384, 61 S. W., 785, 
it was held : 

"A statute whose general subject is the release of mu- 
nicipal corporations from liability to the State for cer- 
tain taxes on litigation, that should have been, but were 



446 TENNESSEE REPOB/TS. [119 Tenn. 

KnozTille t. Gass. 

not, collected in their police courts, is not amenable to* 
constitutional objection, as embracing more than one 
subject^ because of its provisions that all pending act- 
ions for such taxes should be dismissed and that no neiv^ 
actions should be brought for same. The mandate to dis- 
miss pending actions, and the prohibition against bring- 
ing new ones, are but parts of the same general subject"' 

The court said : 

"A statute with one general subject may embrace sub- 
diyisions, provisos, and exceptions pertinent to that sub- 
ject, and so many of them as may be grouped without in- 
congruity/' 

In Carroll v. Almp, 107 Tenn., 266, 64 S. W., 195, the 
title of the act under consideration was : 

"An act to provide more just and equitable laws for 
the assessment and collection of revenue for State, coun- 
ty, and municipal purposes, and to repeal all the laws 
in conflict with the provisions of this act whereby rev- 
enue is collected from the assessment of real estate^ 
property, privileges and polls." 

The body of the act contained a provision for the as- 
sessment of quasi public and manufacturing corpora- 
tions different from that applied to other classes of cor- 
porations, in that the shares of stock of the former 
classes of corporations were not to be assessed to stock- 
holders; compensation for the difference being made in 
the manner of assessing the properties of the companies. 
This court held that the act did not embrace two separ- 
ate and distinct subjects, but only the general and 



11 Gates] SEPTEMBER TERM, 1907. 44T 

Knozville y. Gass. 

broad subject of the just and equitable assessment and 
collection of State, county, and municipal taxes; that 
this broad subject expressed in the title covers all the- 
provisions of the act, including the manner of assessing 
property of corporations; and the matters complained of 
as exemptions are in fact only different methods of tax- 
ing the property of different corporations. 

In Condon v. Moloney, 108 Tenn., 83, 65 S. W., 871', it 
was held that chapter 8, Acts of 1901, providing for a 
road law for Knox county, was not obnoxious to consti- 
tutional objection as embracing two subjects, although 
it deals in its body with public roads and the county 
workhouse. It was shown that by the act of 1891 
(Shannon's Code, section 1642) ^^all persons confined in 
county jails or workhouses shall be available to the com- 
missioners for the purpose of working on the public 
highways." Thus the two subjects of public roads and 
of workhouses have been connected in the history and in 
the legislation of Tennessee until it is fair to say that the 
connection has become organic, and it is entirely within 
the power of the l^islature, in seeking to secure good 
roads, to place these two matters thus connected under 
one control. 

In State, ex rel, v. Haniby, 114 Tenn., 363, 364, 84 
S. W., 622, it was held that an act entitled "An act to 
create and establish four civil districts in the county 
of Cumberland in lieu of the thirteen civil districts now 
existing, to define the boundaries of the same, and to 
abolish certain offices in said county and to provide for 



448 TENNESSEE REPORTS. [119 Tenn. 

Knoxvllle v. Gass. 

the election of their successors," embraced but one sub- 
ject: The objection to the act was that it embraced two 
subjects, as follows: (1) Redistricting Cumberland 
county; and (2) the abolition of certain offices in that 
county. 

In State v. Yardkij, 95 Tenn., 546, 32 S. W., 481, 34 
L. R. A., 656, the act was entitled : "An act to protect 
hotel, inn and boarding house keepers." The body of the 
act provided: (1) That certain fraudulent acts to the 
prejudice of hotel, inn, and boarding house keepers 
should be misdemeanors; (2) what shall constitute 
prima fade evidence of fraudulent intent in prosecu- 
tions for these acts; and (3) for the sale of baggage and 
other property left by defaulting patrons of hotels, inns, 
and boarding houses. It was^ held by this court that 
all matters which are naturally and reasonably con- 
nected with the subject of a statute, either directly or in- 
directly, and all measures which will or may facilitate 
the accomplishment of the purposes of the statute art. 
properly connected in it, and that the act in question did 
not embrace more than one subject. 

In Ryan v. Terminal Co., 102 Tenn., 128, 50 S. W., 
748, 45 L. R. A., 303, the act under consideration was 
•entitled: "An act to amend an act entitled *An act to 
provide for the organization of railroad terminal cor- 
porations and to define the powers, duties and liabilities 
thereof.' '^ The three sections of the act empowered 
railroad companies which entered into contracts with 



11 C5ates] SEPTEMBEB TBBM, 1907. 449 

KnozviUe v. Gass. 

a terminal company to gnarantee the principal and in- 
terest of bonds issned by such company^ as well as other 
contracts made by it in regard to its corporate business, 
and also to subscribe for, hold, and dispose of the capital 
stock or bonds which may be issued by the terminal cor- 
poration. It was held that the body of the act was ger- 
mane to the title which embraced only one subject. 

In MoElwee v. McEhoee, 97 Tenn., 649, 87 S. W., 560, 
the act under consideration was entitled: ^^An act to 
extend the statute of limitations to liens on realty and to 
quiet titles." It was objected that, while the caption re^ 
lated to liens on realty and to the quieting of titles, the 
body of the act embraced liens retained in deeds, mort- 
gages, deeds of trust, and assignments of realty to se- 
cure debts; that the caption of the act simply proposed 
to bar liens in ten years, and cannot be made to include 
mortgages, deeds of trust, and assignments to secure 
debts. The court said: 

"It is evident that the general scope of this act in its 
caption and body is to provide and fix a limitation of the 
life of liens on real estate, no matter how created, in 
order to quiet titles, and is not subject to the criticism 
made. This constitutional provision (article 2, section 
17) has, by the court, been given liberal construction, so 
as not to embarrass legislation and prevent the beneficial 
purposes for which it was adopted." 

In State v. Lasater, 9 Baxt., 584, the title of chapter^ 
130, p. 216, Acts of 1875, was attacked. It was entitled 
"An act to define the rights, duties and liabilities of inn- 
keepers, common carriers and proprietors of places of 



460 TENNESSEE REPORTS. [119 Teon. 

Knozvllle y. Oass. 

public amusement." The second section wag as fol- 
lows: 

"That a right of action is hereby given to any keeper 
of any hotel, inn, theater, public house, common carrier, 
and restaurant, against any person guilty of turbulent 
or riotous conduct in or about the same, and any person 
found guilty of so doing may be indicted and fined not 
less than one hundred dollars, and the offiender shall be 
liable to a forfeiture of five hundred dollars, and the 
owner or person so offended against may sue in his own 
name for the same.'' 

The subject of inquiry was whether the section last 
quoted was ujwn the same subject embraced in the title. 
The court said: 

"Here the subject is the rights, duties and liabilities 
of innkeepers, common carriers, proprietors of places of 
public amusement, etc. Now a provision that no turb- 
ulent or riotous conduct shall be allowed in such places, 
and providing for the punishment of the offenders, we 
think, is not legislation on a different subject. Looking 
to the evil to be remedied, and bearing in mind that there 
must be a clear violation of the constitution before we 
can declare an act void, we hold that this act is not void 
on this ground." 

It is unnecessary to multiply the cases in which this 
section of the constitution has been considered, since 
those already cited illustrate the liberal construction 
which this court has uniformly given to that provision of 
the constitution. It is to be observed that in the cases 



11 Gates] SEPTEMBER TERM, 1907. 451 

Knoxville ▼. Gaaa. 

already cited, and in nearly all on the the subject, de- 
cided by this court, the precise question was whether the 
body of the act under consideration was embraced with- 
in the title. 

The exact question presented on this record is whether 
two distinct subjects are expressed within the title of the 
act of 1907. As stated by this court in State, em rel., v. 
Hamby, 114 Tenn., 364, 84 S. W., 622 : 

"The constitutional provision invoked does not apply 
to the title, but to the body of the bill, the eflfective, oper- 
ative part of the statute, the law that is made. It is no 
objection to a bill that the caption is broader than the 
enacting part, or covers, or can be construed to cover, 
other subjects, .so that the real subject of legislation is 
therein expressed and not obscured by foreign mat- 
ters." 

It is conceded that in the case sub judice the same ob- 
jection made to the title is also presented in the body of 
the act, providing for the isssuance of municipal bonds 
for separate and distinct purposes. In other words, 
the objection is that the title is restrictive, and limits 
the power conferred by the act to the issuance of two 
classes of bonds, and that neither class is germane to 
the other; hence it is said two subjects are presented 
both in the title and in the body of the act 

A similar objection was made to the act under con- 
sideration in the case of State v. Fickle, 3 Lea, 79. The 
act was entitled: 



452 TENNESSEE REPORTS. [119 Tenn. 

KnoxTlUe ▼. GasB. 

''An act to establish a chancery and law court at 
Bristol in the county of Sullivan." 

The first nine sections of the body of said act re- 
lated to a chancery court to be organized and held at 
Bristol by the chancellor of the First division, while the 
remaining sections provided for the establishment of a 
law court at Bristol as one of the courts of the First 
circuit. Said this court: 

''The argument is that this act embraced two sub- 
jects — one, the establishment of a chancery court; the 
other, the establishment of a law court . . . Shall 
we say that the establishment of a chancery court at 
Bristol is one general subject, and the establishment of 
a law court is another general subject, and that it is nec- 
essary, in order to maintain the integrity of the clause 
of the constitution in question, to hold that these two 
general subjects should be accomplished by separate 
acts? Is the establishment of these two courts at the 
same place two general subjects, incongruous and with- 
out connection or relation with each other? Are the pro- 
visions of the act such as to operate as a surprise ui>on 
legislators or others, or to open the way to frauds and 
improper influences, such as are supposed to obtain in 
'omnibus' or 'job' bills? We think not. It can hardly 
be doubted that a bill to establish a new county might 
properly provide for all necessary courts. These would 
be mere incidents germane to the general subject. The 
general subject of this bill is not so broad, and we think 
a proper construction of this act will be to hold that the 



11 Gates] SEPTEMBER TERM, 1907. 453 

Knoxvllle y. Gass. 

general subject is the establishment of such additional 
courts for Sullivan county as, in the opinion of the 
legislature the public exigencies demanded, and with the 
general object the act contains nothing incongruous. 
. . . . Treating the general subject of the act as the 
establishment of such additional courts for Sullivan 
county as the public exigencies demanded, it is mani- 
fest that this general subject is expressed in the title, to 
wit: ^An act to establish a chancery and law court at 
Bristol, in Sullivan county.' This undoubtedly gives no- 
tice of what the act may be expected to contain, and it 
cannot fairly be said that the title is deceptive or mis- 
leading. It is argued that the title indicates but one 
court, a court having common-law and equity jurisdic- 
tion, whereas the act provides for two courts, one of 
chancery and the other of law jurisdiction. This may be 
the strictly grammatical construction of the language of 
the title; but the point, though ingeniously pressed, is 
too fine for practical application. 

"The generality of the title is no objection to it, so 
long as it is not made a cover to legislation incongruous 
in itself, and which, by no fair intendment, can be con- 
sidereji as having a necessary or proper connection. 
Cannon v. Mathes, 8 Heisk., 519.'^ 

Another case in which it was claimed the title was re- 
strictive, and objection made both to the title and the 
body of the act, is the case of State v. Browrif 103 Tenn., 
454, 53 S. W., 727. Chapter 129, p. 273, Acts of 1893, 
is entitled: 



454 TENNESSEE REPORTS. [IW Tenn, 

Knozville v. Gass. 

"An act to amend section 5365 of the Milliken & Ver- 
trees^ Compilation of the Laws of Tennessee, being sec- 
tion 4614 of the Code, as amended by chapter 56, Acts 
of 1871', so as to raise the age of consent, as set forth in 
said section to twelve years, and to prescribe punish- 
ment Id the penitentiary against persons having carnal 
knowledge of females over twelve years and under six- 
teen years and one day of age." 

The body of the act provij^ed that : 

"Any person who shall unlawfully and carnally know 
and abuse a female under the age of twelve, shall, on con- 
viction, be punished as in the case of rape; and any 
person who shall unlawfully know a female over the 
age of twelve years and under the age of sixteen years 
and one day, shall be deemed guilty of a felony in all 
cases not falling under the statutes relating to rape, and 
on conviction, shall be confined in the penitentiary for 
not less than three years, nor more than ten years," etc. 

This court, in passing upon the constitutionality of 
this act, said: 

"The insistence is that this provision is doubly vio- 
lated, in that both the title and body of this act embrace 
two subjects. The title or caption does express the pur- 
pose to raise the age of consent from ten to twelveyears, 
and also the purpose to prescribe the punishment for the 
carnal knowledge of females over twelve years and un- 
der sixteen years and one day of age, and these two 
purposes are more fully expressed and put in force by 
the more elaborate language of section 1 of this act. 



11 Gates] SEPTEMBER TERM, 1907. 455 

Knozville t. Qass. 

Yet this does not establish the proposition that the cap- 
tion and body of the act express and treat respectively 
two subjects. In reality the subject is single, and the 
two purposes indicated relate to different parts of that 
one subject, which is the prevention and punishment of 
carnal connection with young females." 

It will be observed that in all of these cases the in- 
quiry of the court was to ascertain from the title the 
general subject of the act^ and it was held that matters 
which might fairly relate to that subject might properly 
be embraced in the body of the act. 

The title of chapter 361, p. 1203, of the Acts of 1907, 
is as follows: 

"An act to authorize municipalities of Tennessee hav- 
ing a population of the census of 1900, or any subse- 
quent federal census, of not less than thirty thousand 
nor more than forty thousand, to issue one hundred and 
sixty-five thousand dollars of coupon bonds with which 
to fund the floating debts of said cities, to increase and 
improve the fire departments, to widen streets, and pay 
damages to property holders caused by the erection of 
viaducts and bridges; also to authorize said cities to 
issue fifteen thousand dollars of coupon bonds with 
which to build sewers." 

It will be observed, from an examination of the body 
of the act already quoted, that the purposes disclosed 
in the title are fully embraced in the enactment. What, 
then, is the general subject embraced in the title of this 



456 TENNESSEE REPORTS. [119 Tenn. 

Knoxville v. Oass. 

act? It requires neither a narrow nor a latitudinarian 
construction to hold that the issuance of bonds for mu- 
nicipal purposes is the subject of the caption. An is- 
sue of 1166,000 of coupon bonds is authorized for cer- 
tain municipal purposes therein designated, while an- 
other issue of 115,000 is allowed for another municipal 
purpose. Funding floating municipal debts, increasing 
and improving the Are department, widening streets, 
and the payment of damages to property holders caused 
by the erection of viaducts and bridges, and also the 
building of sewers, are all undeniably municipal pur- 
poses. If this act, instead of dividing the amount of 
the bond issue, had authorized the issuance of f 180,000 
of coupon bonds, enumerating the purposes for which 
they might be used, the present verbal criticism would 
be eliminated. The fact that the amount of the bond 
issue is divided, f 165,000 of coupon bonds to be used 
for the purposes enumerated in the title and |15,000 for 
the other purpose designated, would not convert the 
general subject of the act, to wit, the issuance of bonds 
for municipal purposes, into two subjects, for the rea- 
son that all the purposes expressed in the act are cog- 
nate and germane to that one general subject 

It is conceded by counsel for the defendant that, if 
the title had conferred on the municipalities embraced 
in the act the general power to issue bonds for munici- 
pal purposes, it would have been competent to include 
in the body of said act bonds to fund floating debts 
and bonds to build sewers. We do not think the case 



11 Gates] SEPTEMBER TERM, 1907. 457 

KnoxYlUe T. Oass. 

supposed stronger than the actual title of the act here- 
in, wherein the bond issue is divided into two classes 
apportioned for designated municipal purposes. Wheth- 
er the title to the present act be considered from the 
viewpoint of a general or restrictive title, the subjects 
embraced in the title and in the body of the act are all 
municipal purposes, and in that way related to each 
other. In our opinion the act in question is a constitu- 
tional enactment, and the result is the judgment will be 
affirmed. 



458 TENNESSEE REPORTS. [119 Tenn. 

Atkins v. State. 

Charles A. Atkins v. State.* 
{Knoxville. September Term, 1907.) 

1. EVTDBNOE. Nonexpert witnesses of personal observation 
may give opinion as to sanity or insanity, when. 

Where a nonexpert witness shows that he has had the means of 
observing the capacity, manner, peculiarities, or deportment 
of the person concerning whose sanity he undertakes to give 
evidence, he shows that he possesses the fundamental quali- 
fication of previous personal observation that renders him com- 
petent to give his opinion as to the soundness or unsoundness 
of the mind of such person. Such opinion or* judgment ap- 
proaches to knowledge, and is knowledge, so far as the imper- 
fections of human nature will permit knowledge of these things 
to be acquired, and the result thus acquired should be com- 
municated to the Jury. {Post, pp, 463-472.) 

Cases cited and approved: Gibson v. Gibson, 9 Yerg.,. 332; Nor- 
ton V. Moore, 3 Head, 482; Puryear v. Reese, 6 Cold., 26; Dove 
V. State, 3 Helsk., 3^5; Wlsener y. Maupin, 2 Bax., 357; Kirk- 
patrlck V. Klrkpatrlck, 1 Tenn. Cas., 258; Wilcox v. State, 94 
Tenn., 110. 

a.' 8A1CB. Same. Nonexpert witness must state the facts of 
knowledge of, and acquaintance with, the person whose sanity 
is under inquiry. 
A nonexpert witness cannot give an opinion as to the sound- 
ness or unsoundness of the mind of a person concerning whose 
sanity he undertakes to testify, unless he gives th'e facts of his 
knowledge of, and acquaintance with, such person. {Pott, pp, 
467-471. 

Case cited and approved: Wlsener v. Maupin, 2 Bax., 267. 



*As to what intoxication will excuse crime, see note to Harris 
Y. United States (App. D. C), 36 L. R. A, 465. 



11 Gates] SEPTEMBER TERM, 1907. 459 

Atkins y. State. 

8. 8AMB. Nonexpert witneMes to state the facts before giving 
opinion as to sanity or insanity; failure not reversible error, 
when. 
The proper practice in the examination of a nonexpert witness 
as to the sanity or insanity of the accused or other person, 
whose sanity is under inquiry, is to require the witness to 
state first the facts on which he bases his opinion, though 
a failure to comply with this rule would not be reversible error, 
where the facts are stated in the course of the testimony. 
(Past, pp. 470, 471.) 

4. SAME. Nonexpert witnesses showing acquaintance sufficient 
to render them competent to give opinion as to sanity or 
insanity. 

Nonexpert witnesses who show that they had known the ac- 
cused for some time, and had frequently seen and talked with 
him, are competent to give their opinion as to his sanity or 
insanity. {Post, pp. 463-472.) 

5. CHABOE OF OOUBT. Cautioning Jury against expert 
testimony that is not erroneous. 

A charge of the court stating that while expert testimony is 
sometimes the only or best means to reach the truth, yet it is 
largely a field of speculation, beset with pitfalls and uncer- 
tainties, and requires patient and intelligent investigation to 
reach the truth; and instructing the Jury to receive it with 
caution, but to give to it such weight as they give all the other 
testimony, having in view a purpose to arrive at the truth, giv- 
ing an impartial estimate of all the evidence, does not discrimi- 
nate against the expert testimony, and is not erroneous. {Pott, 
pp. 472, 473.) 

Case cited and approved: Wilcox v. State, 94 Tenn., 106. 

6. HOMICIDE. Voluntary intoxication as a defense to murder 
in the first degree, but not to the lower degrees, when. 

Voluntary drunkenness or Intoxication is available as a defense 
only in determining whether the accused is guilty of murder 



460 TENNESSEE REPORTS. [U9 Tenn. 

Atkins V. State. 

In the first degree or In the second degree, dependhig upon 
the fact whether the intoxication prevented the deliberation 
and premeditation essential to constitute murder in the first 
degree; but as to all subsequent inquiries* including self-defense, 
he must be judged by the same rules which measure the con- 
duct of sober men, and he cannot escape conviction on the 
ground of intoxication causing him to think erroneously that 
the deceased intended to do him great bodily harm, and that he 
killed the deceased in self-defense, when a sober man would 
not have so thought and acted. {Post, pp. 472-490.) 
Cases cited and approved: Bennett v. State, M. ft Y., 133; 
Comwell V. State, M. ft T., 147; Swan v. State, 4' Humph., 136; 
Pirtle V. State, 9 Humph., 663; Halle v. State, 11 Humph., 154; 
Norfleet v. State, 4 Sneed, 346; Lancaster v. State, 2 Lea, 575; 
Cartwright v. State, 8 Lea, 376, 385; Renlger v. Fogossa, Plow- 
den, 19. 

7. CHARGE OF 00T7BT. That drunkenness aggravates the 
offense is a harmless error, where the Jury fixed minimum 
punishment, when. 

The court's erroneous charge to the jury that the drunkenness 
of the accused would not only be no excuse for his commis- 
sion of the homicide, 'l^ut rather an aggravation of his of- 
fense," was not prejudicial, but harmless, where the jury found 
the accused guilty of murder In the second degree, and as- 
sessed his punishment at the minimunL {Post, pp. 475, 490, 
491.) 

8. 8AKB. Bequest for instructions covered by those given are 
properly refused. 

A request to charge what Is fully covered by the charge given 
is properly refused. iPo8t, pp. ill, 491.) 



FROM KNOX. 



Appeal in error from the Crimmal Court of Knox 
County.— D. D. Anderson, Judge. 



11 Gates] SEPTEMBER TERM, 1907. 461 

Atkins y. State. 

W. L. Welckee, JoHiN G. HouK^ Will D. Wright^ N. 
IS. OSBOBNE^ and A. Y. Bubbows^ for Atkins. 

Assistant Attobney-Gevnbral Faw, for State. 



Me. Justice Neil delivered the opinion of the Court. 

The plaintiff in error was indicted in the criminal 
court of Enox county at the January term, 1906, for 
the murder of one Edith Eckel, and was conyicted and 
sentenced to ten years' confinement in the State peni- 
tentiary. From this judgment, after his motion for a 
new trial was overruled, he appealed to this court, and 
has here assigned errors. 

The errors assigned are wholly upon the action of the 
court in admitting certain testimony objected to in the 
court below, and upon certain portions of the charge. 
In order, however, to a proper understanding of the 
points thus arising, it will be necessary to give a brief 
statement of the facts and of the defenses interposed. 

On the night of November 1, 1905, shortly before 11 
o^clock, the plaintiff in error called at the house of the 
deceased, and while there began dancing noisily in the 
hall, into which the parlor opened. In the parlor there 
were two other women sitting by the fire, and the de- 
ceased was sitting on a sofa in the corner of the room 
talking to one Charles Stephens. The deceased, having 
her attention attracted to the noise which the plaintiff 
in error was making in the hall, called out to him to de- 



462 TENNESSEE REPORTS. [119 Tenn. 

Atkins y. State. 

sist, or, to use her expression, "to cut out that dancing.'' 
Plaintiff in error replied, "I will cut it out in the hall 
and bring it in there.'' Thereupon he entered the par- 
lor and began dancing in front of the fire. Then the 
deceased got up from her seat, and advanced near to 
the plaintiff in error, and started to put her hand on 
his shoulder. He thereupon fired into her breast with 
a derringer "pistol and killed her. She had nothing in 
her hands at the time, except a bunch of keys and a 
silver dollar. Plaintiff was very drunk at the time, 
but immediately after shooting the deceased he left the 
house, shutting the front door after him. He soon af- 
terwards appeared at the Cumberland Hotel, and left 
his pistol with the clerk to keep for him, telling him 
that he had shot a woman. 

There was evidence introduced on the trial to the ef- 
fect that the plaintiff in error had certain physical 
defects which indicated that he was a degenerate, also 
that his father was a hard drinker before the plaintiff 
in error's birth, and afterwards for a series of years; 
that plaintiff in error, for some ten or twelve years im- 
mediately preceding the homicide, had been addicted to 
strong drink, including whisky, brandy, absinthe, and 
every other kind of drink sold in saloons ; that he had 
many times suffered from delirium tremens, and for two 
years had been affected with a chronic disease which 
deeply impaired his nervous system; that on the night 
in question he was suffering from a recent surgical op- 
eration which gave him great pain. There was also evi- 



11 Gates] SEPTEMBER TERM, 1907. 463 

Atkins y. State. 

dence that he suffered greatly from the loss of sleep, and 
from msufficiait noarishment, caused by his dissipated 
habits. On the basis of these facts, hypothetical ques- 
tions were submitted to several physicians at Knoxyille 
touching his sanity. These physicians all testified, on 
the hypothesis stated on the questions propounded to 
them, that the man was irresponsible at the time the 
act was committed. On the other hand, the State in- 
troduced testimony to the effect that the plaintiff in 
error was a civil engineer, and was in the employ of the 
Southern Railway Company as such, a few weeks before 
the homicide, and that he had a responsible position, 
having two men under his direction. There was also 
evidence to the effect that whatever may have been his 
state of degeneracy, or whatever may have been the de- 
gree of deterioration which he had reached as the result 
of the vicious life he had led, he knew right from wrong 
when he was not drinking, and that it was the effect of 
intoxicating liquors acting upon his enfeebled organiza- 
tion that brought him to an unreasoning state, when he 
was under the influence of these potations. The state 
also introduced two nonexpert witnesses to testify as to 
their opinion of the plaintiff in error's sanity, from 
personal acquaintance and long observation of Mm. The 
introduction of these witnesses is the first ground of ob- 
jection by the plaintiff in error. 

The first of these witnesses was A. A. Qoolsbee. This 
witness testified that in the month of November, 1905, 
he was a deputy sheriff of Knox counly, and prior to 



464 TENNESSEE BEPOETS. [119 Tenn. 

Atkins y. State. 

that time he had been assistant chief of i>olice; that at 
and before the homicide he had long known the plaintiff 
in error, and was accustomed to seeing him every day 
or so, and would sometimes have a tialk with him; that 
he had known him for fifteen years. After he had 
stated these facts he was asked: "Prom your observa- 
tion, and from your talks with him, state whether or 
not, on November 1, 1905, he was a sane man or an in- 
sane man." This was objected to, on the ground that 
the witness was not an expert, and could not express any 
opinion until he had given facts on which to base it. 
The objection was overruled. The question was then re- 
peated in the following form: "State whether or not, 
from your observation of Charles Atkins, over the time 
you have mentioned, your talks with him, and your ac- 
quaintance with him, up to November 1, 1905, Charles 
Atkins was a sane man or an insane man.'' The same 
objection was made and overruled. The witness then an- 
swered: **Well, it is a question. I have seen Charley 
under the influence of liquor, or under the influence of 
an opiate of some kind, I don't know which. I have 
seen him when he was acting under the influence of an 
opiate, when I didn't smell whisky on him, and outside 
of that time I never seen anything wrong with him— al- 
ways supposed him to be a boy of good sense." At this 
point counsel for plaintiff in error asked that the evi- 
dence be excluded, because it consisted of a mere opin- 
ion of the witness, and was not based on facts first de- 



11 Gates] SEPTEMBER TERM, 1907. 465 

Atkins v. State. 

tailed to the jury. The objection was overruled. The 
examination then proceeded as follows : 

"Q. State whether or not, in your opinion, at this 
time, he was sane or insane. A. At what time? Q. 
That is, in Ncivember, 1905. A. Why, I considered him 
sane. (Counsel for plaintiff in error: We object to 
that, because he is not qualified as an expert, nor in- 
stanced his manner, conduct, arid conversation before 
giving his opinion as a nonexpert. No ruling.) Q. 
Did you not talk to him prior to this time? A. Well, 
I lived by him three or four years down here. 
Q. Would you, or not, meet him on the streets here in 
the city? A; Yes, sir; the same as I would other men. 
Q. Well, what would you see him doing? A. I would 
see him coming from work, and sitting on the porch, 
reading the papers, just as any ordinary man would do. 
Q. Do you remember any conversation you had with 
him at any time? A. Nothing in particular, no more 
than I would any other man that I pass and repass. Q. 
Did you, or not, see him after he was in jail, charged 
with this killing? A. I don't think I saw him in jail. 
I saw him after he was out, Q. From your talks with 
him, and your observations of him, what you saw him 
doing as- you have stated, state whether, in your judg- 
ment, he was a sane or insane man. (Counsel for 
prisoner : We object to the question, because he has not 
in any manner qualified himself to answer same. Ob- 

119 Tenn.— 30 



466 TENNESSEE BEPOBjTS. [119 Tean. 

Atkins y. State. 

jection overruled.) A. I consider him sane when he 
wasn't drnnk." 

The next witness on the subject whose testimony was 
objected to was Harmon Kreis, the sheriff of the coun- 
ty. This witness testified that he first became acquaint- 
ed with the plaintiff in error when he was brought to 
the jail for confinement just after the homicide; that he 
saw him every day during the time he was incarcerated, 
running over a period of two or three months— in fact, 
about three months; that he had conversations with 
him, and had an opportunity of observing him; that 
plaintiff in error read a good deal; that he was sick, 
and that he allowed him to eat at his (the sheriff's) 
table, for two or three weeks; that while at table he 
would talk with the plaintiff in error, but never about 
his case; that he talked with him upon general subjects. 
After having made these statements, the witness was 
asked the following questions : "Q. Now, sheriff, state 
whether or not, after having observed his actions in 
jail, during the period you have mentioned, and having 
had the talks with him you have mentioned, whether or 
not, in your judgment, at that time, he, was a sane or 
an insane man. (Counsel for the prisoner: We ob- 
ject to the question as incompetent. He has detailed no 
conduct, conversation, etc., upon which to give an o{)in- 
ion. Objection overruled.) A. Well, I wouldn't take 
him for an insane man. He did not act like one to me, 
though I am not an expert." On cross-examination the 
witness testified that he saw the plaintiff in error the 
next morning after the homicide, and perhaps had some 



11 Gates] SEPTEMBER TERM, 1907. 467 

Atkins y. State. 

conversation with him, but does not remember anything 
that was said. He was then asked if he could repeat any 
conversation he had ever had with the plaintiff in error 
after he was placed in jail, and he answered that he 
could not. 

Upon the question suggested, by the exceptions above 
noted, there is a great array of authority. We shall, 
however, refer to only two text-writers, and to our 
own cases. 

In Elliott on Evidence, vol. 1, section 681, it is said : 
"There are a few decisions to the effect that an ordinary 
witness cannot give an opinion as to the sanity or in- 
sanity of a person ; but the overwhelming weight of au- 
thority is to the effect that he may testify to the sanity 
or insanity of another in a proper case. His opinion or 
conclusion, however, must be based upon personal obser- 
vation or knowledge, and not upon hypothetical facts, 
nor on what he has heard from others. It is also gen- 
erally held that he must first state the facts upon which 
his opinion or conclusion is based. But in the case of 
subscribing witnesses to a will, who testify to the sanity 
of the testator, it seems that they may give their opin- 
ions without first stating the particular facts on which 
they are based." 

In Wigmore on Evidence, vol. 3, section 1917, et seq., 
there is an extensive discussion of the subject. At sec- 
tion 1933 this author says : "At common law, in Eng- 
land, there never had been any question that the opin- 
ions of lay witnesses as to sanity or insanity could be 



468 TENNESSEE REPORTS. [119 Tenn. 

Atkins Y. State. 

received. Wherever a person presented himself as hav- 
ing had acquaintance with, and therefore observation 
of, a testator, or an accused person, whose sanity was 
in question— i. e., wherever the witness had the funda- 
mental testimonial qualification of personal observa- 
tion—no one thought of objecting on the score of the 
opinion rule. This plainly appears in the long list of 
trials in which such testimony was received. Moreover, 
when the opinion rule began to be discussed and for- 
mulated in the last part of the 1700's and the early part 
of the 1800's the judges and the treatise writers con- 
stantly named this subject as one upon which lay opin- 
ions were always and unquestionably received." 

In section 1938 of the same work, at the close of the 
discussion, the author says : "As to the state of the law 
in the various jurisdictions, it is enough to note in gen- 
eral that laymen's opinions are to-day everywhere said 
to be admissible, subject to local qualifications and quib- 
bles." Upon this follows an exhaustive note citing the 
cases, with their holdings from all of the states. 

In our state we have several cases upon the subject: 
Gibson v. Gibson, 9 Yerg., 332; Norton v. Moore, 3 
Head, 482; Puryear v. Reese, 6 Cold., 26; Dove v. State, 
3 Heisk., 365; Wisener v. Maiipin, 2 Baxt., 357; Kirk- 
Patrick v. Kirkpatrick, 1 Tenn. Cas., 258; Wilcox v. 
State, 94 Tenn., 110, 28 S. W., 312; and perhaps other 
cases. The fullest statement of the doctrine, as now 
held in this state, appears in Wisener v. Maupin. In 
that case the question was as to the sanity of a testa- 



11 Gates] SEPTEMBER TEEM, 1907. 469 

Atkins T. State. 

tor. "After a witness," says the court, "had given the 
facts of his knowledge of and acquaintance with the 
testator, he was asked : *From these facts, state in your 
opinion whether or not he was of sound mind and dis- 
posing memory/ The answer is : ^He was not of sound 
mind and disposing memory/ The court allowed the 
answer, so far as the statement that he was not of 
sound mind, but refused to allow it, and sustained the 
exception, as to the question of disposing memory." In 
holding this action of the court below correct, this court, 
speaking through Mr. Justice Freeman, said : 

"The question presented in the case of Oihaon v. Oih- 
son was also discussed in the case of Norton v. Moore, 
3 Head, 482. And the principle settled by the two cases 
is that, when the witness has had the means of observ- 
ing the testator's capacity, manner, peculiarities, or de- 
portment, he may give his opinion as to the soundness or 
•unsoundness of his mind. ^.Such judgment,' says Judge 
Wright, in the case quoted, ^approaches to knowledge, 
and is knowledge, so far as the imperfections of human 
nature will permit knowledge of these things to be ac- 
quired, and the result thus acquired should be commu- 
nicated to the jury, because they have not had the op- 
portunity of personal observation, and because in no 
other way can they effectually have the benefit of the 
knowledge gained by the observation of others.' This 
decision, as well as the case of Qihson v. Qibson, 9 Yerg., 
332, is b^sed on an approval of the case of Glary^s 
Adm^rs v. Clary, 24 N. C, 78. In that case, as stated 



470 TENNESSEE EEPOETS. [IW Tenn. 

Atkins y. State. 

in Judge Wright's opinion (3 Head, 482), the witness 
had no acquaintance with the donor, except from one oc- 
currence. Eleven years before the execution of the deed 
in dispute he had visited her for the purpose of writing 
her will, had received her directions on the subject, and 
wrote it The witness said at this time she appeared to 
him to be in good health, but he thought her intellect 
in the state usually termed childish. The objection to 
this testimony was that it gave the opinion of the wit- 
. nesfiT upon the state of the donor's mind. This was held 
competent by the supreme court of North Carolina, and, 
as we have said, this case has been followed by this 
court in the two cases cited ; and we have no question of 
the soundness of the principle. As a matter of course, the 
jury should weigh the testimony in connection with the 
means of observation of the witness, and his intelli- 
gence, qualifying him to form a judgment ; but the evi- 
dence would clearly be competent. Under tliese rules 
we can see no error in the action of his honor." 
, Nowhere is it held that the mere opinion of the non- 
expert witness, without opportunity for observation, is 
competent, and everywhere stress is laid upon the facts 
coming under the observations of the witness, in order 
to determine the weight of his testimony; and it has 
been held in this State {Jones v. Galbraith, 59 S. W., 
350, 355) that in chancery cases, where the evidence is 
in the form of depositions, it is not essential that the 
witness, prior to the expression of his opinion, should 
state the facts on which he bases that opinion, but 



11 Gates] SEPTEMBEE TERM, 1907. 471 

Atklna v. State. 

that it is sufficient if these facts appear in the course of 
the desposition. In trials at law, where the testimony 
is given ore tenuSy our cases recognize the proper prac- 
tice as requiring first a statement of the facts by the 
witness and then the statement of his opinion. How- 
ever, a failure to comply with this rule would not be 
reversible error, if the facts should be stated in the 
course of the testimony of the witness, since it is by 
these that the court. and jury must judge of the weight 
and value of the opinion of the witness. It is indisputar 
ble that it should appear somewhere in the testimony 
of the witness that he had the testimonial qualifica- 
tion of previous observation of the person concerning 
whose sanity he undertakes to give evidence. It must 
appear, as a preliminary to the expression of his opin- 
ion, that he has had the means of observation. He must 
give the facts of his knowledge and acquaintanceship 
with the person concerning whose sanity he is called to 
testify. After having given these facts he may express 
his opinion. The weight of the opinion, or its value, is 
then developed further by evidence of the particular 
facts coming under his observation, and on which he 
bases his opinion. 

On the principle stated in Wisener v. Maupin, we 
think the testimony of both Goolsbee and Kreis was 
competent. They stated the facts of their acquaintance- 
ship and observation of the prisoner, and thus showed 
that they had the means of knowledge. The value or 
weight of their evidence depended upon the importance 



472 TENNESSEE REPORTS. [119 Tenn. 

Atkins y. State. 

of the particulars stated by them, and this was for the 
jury. 

It is next assigned for error that the circuit judge 
charged the jury as follows: 

"Expert and nonexpert witnesses have been allowed to 
testify to you as to the truth or falsity of the plea of 
defendant of unsound mind. This plea need not be spe- 
cially written and pleaded, as the same can be set up 
under the general issue not guilty. In reference to the 
expert testimony offered you in this case, and which you 
should weigh and consider along with the other proof in 
the case, I charge you in regard to it that expert testi- 
mony should be received with caution. While expert 
testimony is sometimes the only means of, or the best 
way to, reach the truth, yet it is largely a field of spec- 
ulation, beset with pitfalls and uncertainties, and re- 
quires patient and intelligent investigation to reach the 
truth. You should give just such weight as you do all 
the other testimony in the case, governed by a rule to 
arrive at the truth, giving fair and impartial estima- 
tion of all the evidence adduced in the case.'^ 

There is no error in the charge just quoted. It is 
substantially what was said by this court in the case of 
Wilcox V. State, 94 Tenn., 106, 112, 28 S. W., 312. 

It is said that tbis portion of the charge singles out 
expert evidence and discriminates against it, practically 
telling the jury that it is without value. We do not 
think this an accurate criticism. The judge merely 
cautions the jury against the infirmities attaching to this 



11 Gates] SEPTEMBER TEBM, 1907. 473 

Atidns ▼. State. 

particular species of evidence, and he adds in the last 
sentence that the jury mnst give to it such weight as 
they do to all the other testimony, having in view a pur- 
pose to arrive at the truth, and being careful, at the 
same time, to give to this evidence a fair and impartial 
estimate or value, as they must do to all the evidence 
adduced. 

The remaining assignments of error relate to other 
parts of the charge of the court, and to the refusal of his 
honor to give certain instructions to the jury, asked by 
the plaintiflf in error, the defendant below. In order 
that the portions of the charge objected to may be 
properly understood in their relation to the context, we 
set out below a considerable part of the charge^ noting 
by italics those portions which are objected to. The 
italics, of course, do not appear in the original charge. 
His honor instructed the jury as follows : 

^^If defendant went to the house of deceased, and 
willfully, maliciously, deliberately, premeditatedly, and 
with malice aforethought shot and killed deceased, when 
he was neither in danger from her of his life, or of great 
bodily harm, nor in fear of same, nor believed himself so, 
and upon reasonable grounds, then and in that event 
defendant, by the killing of deceased in manner and form 
aforesaid, committed murder in the first degree; but if 
defendant wait to the house of deceased drunk, and to 
such a degree that his intoxication incapacitated him 
from forming a deliberate and premeditated design to 
kill, then defendant woruld not be guilty of murder in 



474 TENNESSEE BEPOBTS. [119 Tenn. 

Atkins y. State. 

the first degree, and his crime would be murder in the 
second degree. 

"Voluntary drunkenness presents no excuse to you, 
gentlemen* of the jury, for the act of homicide. It does 
not mitigate it But you are not trying defendant for 
•drunkenness, and you need only to consider it as tending 
to shed and throw light on his mental status and condi- 
tion of mind at the time, in determining for yourselves, 
together with all the facts and circumstances, the de- 
gree of homicide, if any, defendant has committed- If, 
after you have fully considered all the facts, the condi- 
tion of defendant's mind caused by intoxication, and 
whether in an excessive state of intoxication, or any de- 
gree of intoxication, it is legitimate for you to inquire 
whether it affected, and to what extent it influenced, the 
defendant in the commission of this act, and, viewed 
with all other facts and circumstances of the case that 
have been admitted and testified to in this trial, it ia 
A proper subject for consideration ; and I instruct you 
that, although drunkenness in point of law constitutes 
no excuse or justification for crime, still, when the na- 
ture and essence of a crime depends by law upon the 
peculiar state and condition of the defendant's mind 
at the time of the killing, it must claim your careful 
<jonsideration. But, on the other hand, the court again 
will charge that in legal estimation a drunken man may 
be guilty as if he were sober, if it shall appear from the 
killing the same was willful, deliberate, malicious, and 
premeditated; but, if the defendant was drunk at the 



11 Gates] SEPTEMBER TERM, 1907. 475 

Atkins T. State. 

time he is alleged to bave committed the offense, then 
yon say how far that dmnkenness precluded the defend- 
ant, his intoxication operating on his mind, from con- 
templating murder in the first degree as defined here- 
in. If it does (not), he may be guilty of murder in 
the second degree. It is not claimed by the defendant, 
throtigh his counsel, that the killing teas committed in 
defense of his (defendant's) life, so that it is needless 
to instruct you in reference thereto further than I have 
-already; hut counsel for the defense do say and allege 
that at the time of the commission of the ofense de- 
fendant's mind u?as so beclouded by liquor that by reor 
son thereof he labored under a delusion that decesed was 
about to attack him {defenda/nt) with a knife, and 
hence he fired the fatal shot, and I instruct you thereon 
that, if the delusion was the outcropping of a mind per- 
manently diseased and unsound, then defendant would 
not be guilty; but if, on the other hand, that delusion 
was bom of strong drink and intoadcation at the time, 
then it "ivould a/DaU the defendant nothing, and be no 
excuse for the killing, but rather an aggravation of his 
offense. Hoio this is you must say from the proof. . . . 
'^As between the two offenses of murder in the first 
degree and second degree and voluntary manslaughter, 
the drunkenness of the offender can form no legitimate 
matter of inquiry, and if the killing was voluntary, and 
committed under the influence of liquor either to a 
^eat or less degree, but so as to becloud and render 
oblivious the. slayer's mind, and so as to preclude delib- 



476 TENNESSEE EEPOETS. [119 Tenn. 

Atkins y. State. 

eration, premeditation, or murder in the first degree, 
necessarily it tcould he murder in the second degree; and 
if there toas a provocation that ums sufficient and ad- 
equ/ite, and made by the deceased, such as a blow, it 
might he manslaughter. Manslaughter is defined as the 
unlawful killing of another without malice, express or 
implied. Now, if you should helieve that the defendant, 
at the time of the slaying of d/eceased, ivas of unsound 
mind, incapable of knowing the right and incapable of 
knotcing the wrong, and an irresponsible person, then 
you should acquit the defendant. But, if his irresponsi- 
bility grew out of and was traceable to strong drink and 
intoxication at the time, then and in that event his plea 
of insanity will not avail him. If he knew right from 
wrong prior to and just before the killing, hut reason 
was dethroned by liquor at the time of five slaying, and 
this proof leads you to attribute his incapacity to judge 
of the right and understand wrong of his deeds by rear 
son of intoxication only, the defendant could not avail 
himself of his plea of insanityJ^ 

The instructions which the plaintiff in error asked the 
court below to charge, and which were not given, are the 
following: 

"(I) If you believe, from the proof, that defendant, 
Atkins, from any cause, at the time of firing the shot 
causing the death of Edith Eckel, was irrational, and did 
not at that time know that he was doing wrong in shoot- 
ing, then the defendant, Atkins, would be guilty of no 



11 Gates] SEPTEMBER TERM, 1907. 477 

Atkina y. State. 

crime, and your verdict should be not guilty in this 
case. 

"(2) If you have a reasonable doubt, arising from 
the proof in the cause, whether defendant had sufficient 
understanding to know the nature of the act he was per- 
forming when he shot Edith Eckel, and was not able 
to know and understand whether he was doing right 
or wrong, then you should render a verdict of not guil- 
ty in this case.*' 

"(6) If the jury shall believe that the defendant hon- 
estly believed that, when Edith Eckel approached him, 
she had drawn a knife or other weapon and was about 
to endanger his life or do him great bodily harm, that 
he was then in imminent danger, then he would be guil- 
ty of no crime or any d^ree of homicide heretofore de- 
scribed, but would be acting in self-defense, and your 
verdict would be not guilty." 

Before considering the objection made upon the por- 
tions of the charge above referred to, and upon the re- 
fusal to charge the three requests, it is proper to say 
that the court below instructed the jury correctly upon 
the subject of the presumption of innocence. He charged 
upon the subject of reasonable doubt as follows : 

'There is another test that inures to the safety of all 
defendants that you must regard, and it is this : That 
the State must make out ita case beyond a reasonable 
doubt, and this doubt obtains as to every fact and cir- 
cumstance of the case, and if upon the whole case you 
have a reasonable doubt it should be given to the de^ 



478 TENNESSEE REPORTS. [119 Tenn. 

Atkins y. State. 

fendant, and he be declared by your verdict not guilty.*^ 
Again he said : "A reasonable doubt is a doubt spring- 
ing up of itself and out of the evidence, and if upon the 
whole case you have such doubt you should acquit; and 
if you have reasonable doubt as to the irresponsibility 
of defendant you should acquit defendant, and if at the 
time of the killing, or now, defendant is a person of un- 
sound mind, incapable of knowing right from wrong,, 
your verdict should be not guilty.'* 

He afterwards added the following: "If you have a 
reasonable doubt regarding the existence of any fact es- 
sential to make out the offense charged in this case, then 
you must find every such fact about which you entertaini 
such doubt in favor of the defendant, and exclude the 
same from further consideration, and if any crime 
charged in the indictment, or all of them, cannot be 
made out, anless such fact shall be adopted as proven,, 
then of any and all offenses thus affected the defendant 
must be found not guilty." 

The substance of the contention of plaintiff in error's 
counsel in respect of the portions of the chaise and the 
undelivered instructions above set out is that if the 
plaintiff in error, at the time he committed the homi- 
cide, was so intoxicated as the result of the use of ardent 
spirits that he did not know what he was doing, or if, 
owing to the intoxication, he mistook the silver dollar 
and bunch of keys in Edith Eckel's hand for a knife, 
and supx>osed, in his then besotted condition, that she 
was about to stab him with a knife, he would be guilty 



11 Gates] SEPTEMBER TERM, 1907. 47» 

Atkins y. State. 

of no crime, first, because while in such a mental condi- 
tion he could not entertain a criminal purpose, and, sec- 
ondly, because he would be in the proper exercise of the 
right of self-defense. 

The law upon this subject, as we regard it, has lonff 
been settled in this State, and but for the very earne. .. 
and insistent presentation of the views above suggested 
by the eminent counsel for the prisoner we should not 
deem it necessary to do more than merely cite the cases. 
However, under the circumstances, we shall go into the 
matter sufficiently to recall the language of some of the 
cases and to state the general principle as held in this 
State. 

We have several cases upon this subject. They are: 
Bennett v. State^ Mart. & Y., 133; CormoeU v. State, 
Mart. & Y., 147; Sxctm v. State, 4 Humph., 136; Pirtle 
V. State, 9 Humph., 663; JSTatZe v. State, 11 Humph., 154; 
Norfleet v. State, 4 Sneed., 346; Lancaster v. State, 2 
Lea, 575, Carticright v. State, 8 Lea, 376, 385. 

In the case last cited, after reviewing the greater num- 
ber of the previous cases, the court said : "The rule ta 
be extracted from these cases is about this : If drunk- 
enness exists to such an extent as to render the defend- 
ant incapable of forming a premeditated and deliberate 
design to kill, then, of course, he cannot be guilty of 
murder in the first degree. Still, if the drunke^^ness be 
not of this extent, nevertheless the jury may consider the 
drunkenness in connection with all the facts, to see 
whether the purpose to kill was formed in passion pro- 



480 TENNESSEE REPORTS. [119 Tenn. 

Atkins v. State. 

duced by a cause operating upon a mind excited with 
liquor, not such adequate provocation as would reduce 
the killing to manslaughter, but neyertheless such as 
produced passion in fact, and reduce the killing to mur- 
der in the second degree, or whether, notwithstanding 
the drunkenness, the purpose to kill was formed with 
deliberation and premeditation, for a drunken man may 
be guilty of murder in the first degree if the drunken- 
ness be not to such an extent as to render his mind in- 
capable of deliberation and premeditation/' 

It is seen from this rule that the only consideration 
given to the fact of drunkenness or intoxication at the 
time of the commission of the crime of murder is to en- 
able the court and jury to determine whether the pris- 
oner may not be guilty of murder in the second degree, 
rather than of murder in the first degree. 

The matter was stated more at large in Haile v. 
State. After referring to Pirtle v. State, the court, 
speaking through Mr. Justice Green said : 

"Hero the court explicitly lays down the rule to be 
that, in all cases where the question is between murder 
in the first and murder in the second degree, the fact 
of drunkenness may be proved, to shed light upon the 
mental status of the offender, and thereby to enable the 
jury to determine whether the killing sprung from a 
premeditated purpose, or from passion excited by inad- 
equate provocation; and the degree of drunkenness 
which may then shed light on the mental state of the 
offender is not alone that excessive state of intoxication 



11 Gates] SEPTEMBER TERM, 1907. 481 

Atkins y. State. 

which deprives a party of the capacity to frame in his 
mind a design deliberately and premeditatedly to do an 
act, for the court says that in the state of drunkenness 
referred to a party well may be guilty of killing will- 
fully, deliberately, maliciously and premeditatedly, and 
if he so kill he is guilty as though he were sober. 

"The principle laid down by the court is that, when 
the question is, can drunkenness be taken into consid- 
eration in determining whether a party be guilty of mur- 
der in the second degree? the answer must be, that it 
cannot ; but, when the question is, what was the mental 
state of the perpetrator at the time the act was done? 
was it one of deliberation and premeditation? then it 
is competent to show any degree of intoxication that may 
exist, in order that the jury may judge, in view of such 
intoxication, in connection with all the other facts and 
circumstances, whether the act was premeditatedly and 
deliberately done. 

"The law often implies malice from the manner in 
which the killing was done or the weapon with which 
the blow was stricken. In such case it is murder, though 
the perpetrator was drunk. And no degree of drunken- 
ness will excuse in such case, unless by means of drunk- 
enness an habitual or fixed madness- be caused. The law 
in such cases does not seek to ascertain the actual state 
of the perpetrator's mind, for, the fact from which mal- 
ice is implied having been proved, the law presumes its 
existence, and proof in opposition to this presumption 

119 Tenn.— 31 



482 TENNESSEE REPORTS. [119 Tenn. 

Atkins y. State. 

is irrelevant and inadmissible. Hence a party cannot 
show that he was so drunk as not to be capable of en- 
tertaining a malicious feeling. The conclusion of law is 
against him. 

"But, when the question is whether a party is guilty 
of murder in the first degree, it becomes indispensable 
that the jury should form an opinion as to the actual 
state of mind with which this act was done. All 
murder in the first degree (except that committed by 
poison and by lying in wait) must be perpetrated will- 
fully, deliberately, maliciously, and premeditatedly. 
The jury must ascertain, as a matter of fact, that the 
accused was in this state of mind when the act was done. 
Now, according to the cases of Stcmi v. State and Pirtle 
V. State, any fact that will shed light upon this subject 
may be looked to by them, and may constitute legitimate 
proof for their consideration. And, among other facts, 
any state of drunkenness, being proved, is a legitimate 
subject of inquiry, as to what influence such intoxica- 
tion might have had upon the mind of the oflEender in 
the perpetration of the deed. 

"We know that an intoxicated man will often, upon 
a slight provocation, have his passions excited and 
rashly perpetrate a criminal act. Now, it is unphilo- 
sophical for us to assume that such a man would, in the 
given case, be chargeable with the same degree of delib- 
eration and premeditation that we would ascribe to a 
sober man, perpetrating the same act upon a like prov- 
ocation. 



11 Gates] SEPTEMBER TERM, 1907. 483 

Atkins Y. State. 

"It is in this view of the question that this court held, 
in Stvan's Case and Pirtle's Case, that the drunkenness 
of a party might be looked to by the jury, with the 
other facts in the case, to enable them to decide whether 
the killing was done deliberately and premeditatedly." 

In a very early case {Cormoell v. State, supra) the 
question was examined by Mr. Justice Crabbe in a very 
elaborate opinion. In that case the immediate subject 
of the court's observations was the following excerpt 
from the bill of exceptions showing the action of the 
court below : 

"The court, in charging the jury, after defining the 
crime of murder, stated that, the fact of killing being 
proved, the law presumes malice; and it lies on the de- 
fendant to show, from proof, circumstances of excuse 
or alleviation, unless they otherwise appear. Malice is 
expressed or implied; and, when there is no previous 
grudge, it is implied when one kills another with a dead- 
ly weapon, not having been previously assaulted, in 
which case it is murder. You will inquire whether 
there was express malice, or whether there was a pre- 
vious assault If, at the time, he had not sufficient un- 
derstanding to know right from wrong, and was in a 
state of insanity, it would be an excuse ; but that must 
be proved. But if his insanity or unusual bad conduct 
arose from drunkenness, it is no excuse. There may be 
cases where insanity is produced by long-continued hab- 
its of intoxication ; but it must be a permanent insanity. 
Insanity which is the immediate eflfect of intoxication 



484 TENNESSEE REPORTS. [119 Tenn. 

Atkins y. State. 

is no excuse. He is equally responsible for all his acts. 
The counsel for the prisoner requested the court to 
charge the jury, if they believed, from all the circum- 
stances of the case, that the defendant at the time of the 
slaying labored under a temporary suspension of reason, 
and wad insane, although intoxication might have been 
the exciting cause, it is a circumstance of mitigation or 
excuse; and more especially if intoxication was not in- 
tended at the time of drinking, but the same was acci- 
dental, or a consequence not intended or apprehended. 
But the court would not so charge, but said insanity 
thus produced was no excuse." 

In responding to an assignment that the court be- 
low erred in charging as he did, and refusing to charge 
as requested, Mr. Justice Oabbe said: 
. "Three cases of conviction for murder have been 
brought before this court at the present term, in two of 
which the prisoner was defended in the court below on 
the ground of madness occasioned by drunkenness; and 
yet in neither does it seem to us was there a colorable 
foundation for such a defense. This court would be re- 
miss in the performance of their duty if they did not, 
under these circumstances, declare the law explicitly on 
this most important subject. In the argument of these 
causes very untenable positions have been assumed, and 
very dangerous doctrines have been advanced by coun- 
sel; and from what was stated by some of those coun- 
sel, these doctrines have been repeatedly urged and 
sometimes sanctioned in the courts below. 



11 Gates] SEPTEMBER TEBM, 1907. 485 

Atkins y. State. 

^^It has become fashionable of late to discourse and 
philosophize much on mental sanity and insanity. New 
theories have been broached, and various grades and 
species of mania have been indicated. Some reasoners 
have gone so far as to maintain that we are all partial 
maniacs. Whatever differences of opinion there may be 
as to the construction and operations of the mind of 
man, whatever difficulty in discovering the various de- 
grees of unsoundness, it is only necessary for us to as- 
certain the kind of prostration of intellect which is re- 
quisite to free a man from punishment for crime by the 
law of the land. It is with this alone we have to do. 
*What the law has said, we say. In all things else we 
are silent.* We put our feet in the tracks of our fore- 
fathers. *Non mens hie sermo, sed quae praecepit Offel- 
lus.' Let us, then, for a moment resort to the sages of 
the law of different ages, and learn from them whether 
that 6i>ecies of frenzy which is produced by inebriety 
constitutes any excuse for crime and what sort of in- 
sanity it is which will serve this puiT)ose. 

"The good and the great, the humane yet firm, Sir 
Matthew Hale, in his History of the Pleas of the Crown, 
divides madness (dementia) into three kinds — ^idiocy, 
accidental or adventitious madness, and drunkenness. 
'The second species, when it amounts to a total aliena- 
tion of the mind, or perfect madness, excuses from the 
guilt of felony and treason; and further, i>ersons af- 
flicted with accidental madness, whether temporary (as 
in the case of lunacy) or continued, if they are totally 



486 TENNESSEE BEPOEflPS. [119 Tenn. 

Atkins T. State. 

deprived of the use of reason, cannot be guilty ordinarily 
of capital offenses; for they have not the use of under- 
standing, and act not as reasonable creatures, but their 
actions are, in effect, in the condition of brutes.' 

" ^The third sort of madness is that which is demen- 
tia affectata, namely, drunkenness. This vice doth de- 
prive men of the use of reason, and puts many men into 
a perfect, but temporary, frenzy ; but by the laws of Eng- 
land such a person shall have no privilege by this volun- 
tarily contracted madness, but shall have the same judg- 
ment as if he were in his right senses.' 

"In the case of Beniger v. Fogossa, in Plowden, 19, 
we have a rule laid down, which has been approved 
again and again, from the early day in which it was ad- 
vanced to the present time, ^that, if a person that is 
drunk kills another, this shall be felony, and he shall 
be hanged for it; and yet he did it through ignorance, 
for when he was drunk he had no understanding or mem- 
ory; but inasmuch as that ignorance was occasioned by 
his own act and folly, and he might have avoided it, he 
shall not be privileged thereby.' Here we have the 
strongest case put— a case of a total deprivation of un- 
derstanding by drunkenness. Yet it is held to form no 
excuse. 

"Lord Coke, in his Cononentaries (page 24Ta), says: 
'As for a drunkard, who is voluntarius daemon, he hath 
no privil^e thereby; but what hurt or ill' soever he 
doth, his drunkenness doth aggravate it.' And we are 
told in Beverly^s Case, 4 Rep., 125, 'that although he 



11 Gates] SEPTEMBER TERM, 1907. 487 

Atkins Y. State. 

who is drunk is for the time non compos mentis, yet 
his drunkenness doth not extenuate his act or offense, 
nor turn to his avail.^ 

"Hawkins, in his Pleas of the Crown (book 1, c. 1, 
section 6), says *that he who is guilty of any crime 
whatever through his voluntary drunkenness, shall be 
punished for it as much as if he had been sober/ The 
erudite commentator on the laws of England writes as 
follows on this subject (4 Black., chs. 25, 26) : ^As to 
artificial, voluntarily contracted madness, by drunken- 
ness or intoxication, which, depriving men of their rea- 
son, puts them in a temporary frenzy, our law looks up- 
on this as aggravation of the offense rather than as an 
excuse for any criminal misbehavior. The law, consid- 
ering how easy it is to counterfeit this excuse, and how 
weak an excuse it is, though real, will not suffer any 
man thus to privilege one crime by anothef .* 

"But the part of the judge's charge which is mjDst 
earnestly objected to is in the following words: *There 
may be cases where insanity is produced by long-con- 
tinued habits of intoxication, but it must be a perma- 
nent insanity.' 

"It has been already stated by us that madness, or 
insanity, if the term be preferred, occasioned immedi- 
ately by drunkenness, does not excuse. Yet the judge 
correctly says *that if, by means of drunkenness, a per- 
manent or, as Lord Hale to the same effect expressed it, 
if habitual or fixed, madness be caused, that it will ex- 
cuse/ See Hale, P. C. pt. 1, ch. 4. 



488 TENNESSEE REPOBTS. [119 Tenn. 

AtUns Y. State. 

"In the above extracts we see the law in this resi)ect: 
A contrary doctrine ought to be frowned out of circula- 
tion, if it has obtained it, by every friend to virtue, 
peace, quietness, and good government The history of 
criminals and criminal trials shows that he who has 
not learned betimes to restrain the evil inclinations of 
our nature— envy, malice, revenge, and their kindred 
passions — ^but has a sufficiency of moral sense left to 
deter him from the commission of enormity while sober, 
will often ^screw his courage to the sticking point' by the 
free use of ardent spirits, and, thus made able to silence 
the twinges of his conscience, will voluntarily imitate 
the demon. But let courts once approve the doctrine 
now contended for, and it will not be resorted to as a 
plea by i>er8ons of this description alone; but even the 
cold-blooded calculating assassin will never be a sober 
homicide. ' He will always exhibit himself at the bar of 
a court of justice as a specimen of insanity produced by 
drunkenness. And thus this d^rading and disgraceful, 
yet too common, vice, instead of being hunted from so- 
ciety as the bane of good morals and social and domes- 
tic happiness, will be converted into a shield to protect 
from punishment the worst of crimes. All civilized gor- 
emments must punish the culprit who relies on so un- 
tenable a defense; and in doing so they preach a louder 
lesson of morality to all those who are addicted to in- 
toxication, and to parents and to guardians^ and to 
youth and society, than ^com^ in the cold abstract from 
pulpits.' 



11 Gates] SEPTEMBER TERM, 1907. 489 

Atkins y. State. 

"In order to be clearly understood, we have supposed 
the strongest case— a case of entire prostration of in- 
tellect immediately occasioned by drunkenness — and 
have said that that constitutes no excuse. Instances, 
however, of heinous offenses, committed under such cir- 
cumstances, are believed to be of rare occurrence. They 
are much oftener the 'result of that midway state of in- 
toxication which, although sufficient to stimulate the 
evil-disposed to actions correspondent with their feel-- 
ings, would not excite the good man to criminal deeds. 
It is generally the drunken man acting out the sober 
man's intent. He says and does when drunk what he 
thinks when sober.'' 

The foregoing observations set forth in the strong- 
est manner the fallacy of the contentions insisted upon 
by the*, prisoner's counsel in the present case, and show 
how impossible it is, how contrary to the sound policy 
of the law, and how destructive to public peace and 
public order, such doctrines would prove, if they should 
be permitted to gain a foothold in our courta 

It is true that in none of these cases cited was there 
any question raised as to a misapprehension the pris- 
oner might be under as to the hostile intentions of the 
party killed; such misapprehension arising solely from 
the besotted condition of his mind produced by volun- 
tary intoxication. But the principles enunciated cover 
this phase of the matter -fully. After the inquiry is 
passed as to whether the accused party is guilty of 
murder in the first degree or murder in the second de- 



490 TENNESSEE BEPOBTS. [119 Tenn. 

Atklna t. State. 

gree, no further consideration, under our authorities, 
is given to the fact of his intoxication. , As to all sub- 
sequent inquiries he must stand at the bar of justice and 
be judged by the same rules which measure the conduct 
of sober men. Indeed, the consequences that would fol- 
low any other view are horrible to contemplate. If it be 
true that the red-handed murderer can say to the 
court, and be thereby excused, "I killed the man I am 
accused of killing, because I was very drunk, and did 
not know what I was doing,'^ or "I supposed, without 
any foundation in fact, but simply because I was drunk, 
that he was going to do me great bodily harm, and there- 
fore I killed him," truly the quiet and peaceable and 
orderly members of every community in the State would 
be at the mercy of the drunken, the disorderly, and the 
brutal, and the courts would be powerless to check the 
quick and certain descent of social order into chaos and 
ruin. No such license to commit rapine and murder 
can be issued to vicious, drunken, and besotted men. 

It is insisted that at all events the judge of the court 
below committed error in saying to the jury that drunk- 
enness would not only be no excuse for the commission 
of the homicide ^^but rather an aggravation of his of- 
fense." This was an incorrect expression on the part 
of the circuit judge, as held in Haile v. State, supra, 
at page 158 of 11 Humph., next to the last paragraph 
of the opinion. However, no injury was done to the 
prisoner by this remark, because the jury gave him the 
vei7 lowest term they could give him, after finding him 



11 Gates] SEPTEMBEE TERM, 1907. 491 

Atkins ▼. State. 

guilty of murder in the second degree. The statute 
prescribed as a punishment for that offense confinement 
in the State penitentiary for a period of not less than 
ten nor more than twenty years. The jury gave him 
only ten years. The verdict was a very merciful one. 
The subject-matter of the second request was fully cov- 
ered by the charge of the court. 

There is no error in the judgment of the court below^ 
and it must be affirmed* 



492 TENNESSEE BEPOBTS. [119 Tenn. 



Lnttrell t. Railroad. 



S. B. LuTTRELL & Co- V. Knoxville, La Follettb & Jbi> 
LiCQ Eailboad Company et al* 

{Knoxville. September Tenn, 1907.) 

1. BAHiBOADS. In materialman's suit to enforce lien, sub- 
contractor is necessary party, when. 

In a suit by a materialman to enforce a lien on the property of 
a railroad company founded on an unadjudlcated claim for 
materials famished to a subcontractor of the principal rail- 
road contractor for the construction of a railroad tunnel, the 
subcontractor is a necessary party. (Post, pp. 497-604.) 

Acts cited and construed: Acts 1881, ch. 67; Acts 1883, ch. 
220; Acts 1889, ch. 103; and especially Acts 1891, ch. 98, sees. 
1, 2, and 3. 

Cases cited and approved: Warner v. Tates, 118 Tenn., 548; 
Vreeland v. Ellsworth, 71 Iowa, 347; Hardware Go. v. IfcCon- 
nell, 102 Ala., 577; Gumming y. Wright, 72 Oa., 767; Murdock 
T. HiUyer, 45 Mo. App., 287; Ashbum v. Ayers, 28 Mo., 77; 
Estey y. Lumber Go., 4 Golo. App., 166; Thompson y. OUmore, 
50 Me.« 436. 

2. 8AMB. Same. Failure to make suboontraotor a party is 
waived by answer of railroad to merits without objection. . 

The failure to make the subcontractor a party to the suit de- 
scribed in the first headnote is waiyed by the defendant rail- 
road's answer to the merits, without making the objckstion by 
demurrer or otherwise in the lower court {Post, pp, 601, 
604.) 



*As to right to lien for ezplosiyes, see note to Schaghticoke 
Powder Go. y. Greenwich & J. R. Go. (N. Y.), 2 L. R. A. (N. S.), 
288. 



11 Gates] SEPTEMBER TEBM, 1907, 493 

Luttrell v. Railroad. 

8. 8AMB. flame. Same, Answer denying the existence and 
ibdnsr of the lien doev not raise objection for nonadjudication 
against subcontractor or for his not being a party, when. 
Objection for failure of complainant in the suit described in 
the ffrst headnote to establish his claim by adjudication against 
the subcontractor, or to make the subcontractor a party to 
such suit, is not made or raised so as to avoid a waiver of tbe 
objection by defendant railroad's answer denying that com- 
plainant has taken the necessary steps to fix a lien in his f^vor 
upon respondent's railroad and property, and denying that com- 
plainant has acquired or is entitled to any lien on such prop- 
erty; a construction concurred in by defendant railroad, by 
permitting complainant's evidence, showing that the materials 
were furnished to the subcontractor and by him used in the 
construction of the railroad tunnel, to be admitted without 
objection. (Post, pp. 504, 505.) 

4. SAHB. Defects in notice or absence of notice of lien for 
materials furnished to a subcontractor may be waived, 
ih a materialman's suit to enforce a lien for materials furnished 
to a subcontractor in the construction of a railroad tunnel, 
defects in complainant's notice to the railroad of his Hen, or 
the failure to give such notice, may be waived by the defend- 
ant railroad, and the same is waived by not making objection 
in the lower court {Post, p. 505.) 

Case cited and approved: Noll v. Railroad, 112 Tenn., 140. 

d. SAICB. Materialman's lien for materials furnished to a sub- 
contractor may be enforced without attachment. 
A materialman's lien against a railroad and its property for 
materials furnished to a subcontractor in the construction of 
a railroad tunnel may be enforced in chancery, without attach- 
ment of the property sought to be subjected, by a bill framed 
in strict conformity with the statute creating the lien, with 
a description of the property whose sufficiency is not questioned 
in the answer, and resulting in a decree declaring the lien 



494 TENNESSEE REPOKTS. [119 Tenn. 

Luttrell y. Railroad. 

upon the - property by snbstantlfJly the same description as 
that given In the bill, where the statute does not require at- 
tachment of the property sought to be subjected. {Poti, pp.. 
605-509.) 

Acts cited and construed: Acts 1883, ch. 220; Acta 1891, ch.. 
98, sees. 2 and 3. 

Cases cited and approved: August v. Seesklnd, 6 Cold., 173; 
Bryan v. Zarecor, 112 Tenn., 511; Trust Co. v. Condon, 67 Fed.,. 
106, 14 C. C. A.. 314. 

6. SAKE. Rule of liberal construction given to mechanic's lien, 
law is applied to railroad lien law. 

The rule of liberal ccHistruction uniformly given to the mechanic's* 
Hen law to carry out Its purpose, and to secure and protect 
those entitled to the lien, and thereby to promote and encour- 
age Improvements, is applied to the railroad lien law. (Post, p. 
507.) 

Cases cited and approved: Barnes v. Thompson, 2 Swan, 215; 
Alley V. Lanier, 1 Cold., 541; Kay v. Smith, 10 Helsk., 42; 
Steger v. Refrigerator Co., 89 Tenn., 453; Ragon v. Howard, 97 
Tenn., 341. 

7. SAICB. lien for explosives furnished to a subcontractor to be 
used in blasting in constructing a railroad tunnel. 

A materialman Is entitled to a Hen against a railroad for explo- 
sives furnished to a subcontractor to be used in blasting in 
the construction of a railroad tunnel, under a statute creat- 
ing a lien for work and materials furnished in the construction 
and repair of railroads. (Post, pp, 512, 513, 515, 520.) 

Acts cited and construed: Acts 1883, ch. 220, sec. 3; Acts 
1891, ch. 98, sec. 1. 

Case cited and approved: Powder Co. v. Railroad, 113 Tenn., 
392. 



11 Gates] SEPTEMBER TERM, 1907. 495 

Luttrell y. Railroad. 

8. SAKS. Materialman has lien for materials furnished to a 
snboontractor to be used in construction or repair of railroad, 
whether so used or not. 

A materialman has a lien for materials furnished in good faith 
to a subcontractor to be used in the construction or repair of 
a certain railroad, though such materials are not actually used 
for the purpose for which furnished. (Post, pp. 513, 514.) 

Acts cited and construed: Acts 1883, ch. 220, sec. 3; Acts 1891,. 
ch. 98. sec. 1. 

Cases cited and approved: Powder Co. v. Railroad, 113 Tenn.,. 
392. 

9. 8AMB. No lien for materials furnished to a railroad subcon- 
tractor for erection of shanties for his workmen. 

A materialman is not entitled to a lien for materials furnished 
to a railroad subcontractor for the erection of shanties on 
leased land adjacent to the railroad right of way for the shel- 
ter of his workmen. {Post, pp, 513, 514, 515.) 

Acts cited and construed: Acts 1883, ch. 220, sec. 3; Acts 1891,. 
ch. 98« sec. 1. 

Cases cited and approved: Lumber Co. v. Railroad, 33 Neb.,. 
39 (overruling the former opinion in 28 Neb., 39) ; Dudley v. 
Railroad, 65 Mich., 655. 

10. SAMS. No lien for tools and machinery and repairs thereof, 
and the appliances used in operating them; articles specified. 

A materialman is not entitled to a lien against a railroad for 
furnishing to a railroad subcontractor gasoline, gasoline torches 
and coal oil, used for lighting a railroad tunnel while in proc- 
ess of construction, packing, mattocks, cotton waste, electric 
light supplies, carts, tools, shovels, spades, blacksmith tools, 
wagons, scrapers, plows, machines, machinery, derricks, der- 
rick crabs, cables, and repairs for all these, for they are not 
lienable articles. (Post, pp, 509-513, 515-519.) 



496 TENNESSEE REPORTS. [119 Tenn. 

Luttrell y. Railroad. 

Acts cited and construed: Acts 1883, ch. 220, sec. 3; Acta 1891, 
ch. 98, sec. 1. 

Case cited and approved: Powder Co. v. Railroad, 113 Tenn., 
392, 396, 397; Powder Co. v. Railroad, 42 Fed., 474; Trust Co. 
V. Railrdad, 23 Fed., 703. 
IL SAME. No lien lor tableware and commissary supplies, nor 
materials in payment for labor, when. 

Under our statute creating the railroad lien, tableware and com- 
missary supplies furnished to a subcontractor and materials 
furnished to the workmen in part payment for their labor are 
not lienable articles, for the sense in which they enter into 
the construction of the railroad is too remote. (Post, pp. 619, 
520.) 

Acts cited and construed: Acts 1883, ch. 220, sec 3; Acts 1891, 
ch. 98, sec. 1. 

Case cited and approved: Powder Co. v. Railroad, 113 Tenn., 
392, 396, 397. 
12. SAME. liien for specified articles furnished to a subcontractor 
to be used in the construction of a railroad tunnel. 

A materialman is entitled to a lien against a railroad for fur- 
nishing to a railroad subcontractor dynamite, fuse, blasting 
wire, wire fuse, nails, nuts, washers, bolts, soft steel and Iron 
which went into the construction of the lining and approaches 
to the railroad tunnel. {Post, pp. 509, 510, 515, 520.) 

Acts cited and construed: Acts 1883, ch. 220, sec. 3; Acts 1891, 
ch. 98, sec. 1. 



FROM ANDERSON. 



Appeal from the Chancery Court of Anderson County. 
Hugh G. Kyle, Chancellor. 

Tbmplbton & Tbmplbton^ for complainants. 

OoRNiCK^ Wright & Frantz and X. Z. Hicks^ for de- 
fendant railroads. 



11 Gates] SEPTEMBER TERM, 1907. 497 

Luttrell Y. Railroad. 

Shiblds^ Gates & Mountoastlb^ for defendant Ma- 
son & Hoge Go. 



Mb. Special Justice Hendbbson deliyered the opin- 
ion of the Gonrt. 

The original bill was filed in the chancery court of 
Anderson county February 3, 1905, by complainants, a 
copartnership engaged in the hardware business at 
Knoxville, against the Knoxville, La Follette & Jellico 
Railroad Gompany, a Tennessee corporation, the Louis- 
yille & Nashyille Railroad Gompany, a Kentucky cor- 
poration, and Mason & Hoge Gompany, a corporation 
or copartnership, defendants. 

Gomplainants furnished materials and supplies, etc., 
to G. H. Gole & Go. to the amount of |10,506.45, which 
were used in the building and construction of Dossett's 
tunnel on the defendant's railroad, said G. H. Gole & 
Go., being subcontractors under Mason & Hoge Gom- 
pany; and the prayer of the bill is to have their ac- 
count declared a lien on the property of the railroads, 
under chapter 98, p. 215, of the Acts of 1891. 

After certain interlocutory orders and report of 
special master, the chancellor declared a lien for a i)or- 
tion of the account, and refused to do so for the balance, 
dismissing the bill as to Mason & Hoge Gompany. Gom- 
plainants have appealed from the portion of the decree 
that disallows the lien ; and the two railroad companies 
appeal from the portion of the decree adverse to them. 
Both sides have assigned errors. 

119 Tenn. — 32 



498 TENNESSEE EEPOBTS. [119 Tenn. 

Luttrell y. Railroad. 

We first consider the first assignment of error by the 
railroad companies, as that presents a preliminary qnes- 
tion. This assignment is as follows : 

"The chancellor erred in holding and decreeing that 
the complainants have acquired a lien on the proi)erty 
of the appellant railroad companies, under this pro- 
ceeding, for any part of their alleged account against 
G. H. Cole & Co. There is no privity of contract be- 
tween the complainants and either of the defendants, 
and as G. H. Cole & Co. are not sued, and the property 
of the defendants is not brought into the custody of the 
court by attachment, the chancery court did not acquire 
jurisdiction either of the person against whom com- 
plainants would be entitled to a judgment or of 
the property which they seek to have subjected to the 
payment of their alleged claim against G. H. Cole & 
Co., and the decree of the chancery court in this cause 
is absolutely void." 

This is a suit upon an open, unliquidated account for 
materials, etc., furnished G. H. Cole & Co., the subcon- 
tractors, and which were used in the construction of 
the railroad. It is argued that it is necessarily a pro- 
ceeding to recover judgment in personam against the 
subcontractors, and a proceeding in rem against the 
property in which the subcontractor has no interest, 
and that, to enable the court to pronounce judgment in 
rem^ complainants must first obtain a personal judg- 
ment against the subcontractor and bring the property 
of the railroad into the custody of the court by attach- 
ment, or, at least, that the subcontractor is a necessary 



11 Gates] SEPTEMBER TERM, 1907. 499 

Luttrell V. Railroad. 

party to the proceeding to enforce the lien under chapter 
98, p. 215, of the Acts of 1891. 

The act of 1891 amends chapter 220, p. 296, of the 
Acts of 1883, and the lien is 'given by section 1, p. 215, 
of the Acts of 1891, to the materialman and others on 
the property of the railroad ^'in as full and ample a man- 
ner as is now provided by law for persons contracting 
directly with such railroad company for any such work 
and labor done or for materials furnished, provided that 
within ninety days after . . . *such materials are 
furnished . . . such materialman . . . shall 
notify in writing any such railroad company or the own- 
er of such railroad, should it or they reside in the State, 
or its or their agents or attorneys, should it or they be 
beyond the limits of the State, that said lien is claimed, 
specifying in the face of said notice the character of the 
. . . materials furnished, and the value thereof; and 
said lien shall continue for the space of one year from 
the service of said notice, and continue until the term- 
ination of any suit commenced for the enforcement of 
said liens, brought within said one year; and said liens 
shall have priority over all other liens on such railroad, 
its property and franchises." 

Section 2 provides "that the liens provided for in this 
act may be enforced by suits brought against such rail- 
road company in the circuit or chancery court of the 
county or district where the work or material, or any 



500 TENNESSEE REPORTS- [119 Tenn. 

LuttreU y. Railroad. 

part thereof, was done or f arnished, op any part of said 
services was rendered." 

Section 3 provides ^'that the plaintiff shall set out in 
his declaration or bill, as the case may be, with reason- 
able certainty, the work done, services rendered or ma- 
terials furnished, the amount claimed therefor, the na- 
ture and substance of any contract made with such rail- 
road company, or any contractor or construction com- 
pany, or subcontractor, as the case may be, accompany- 
ing such declaration oV bill, with a copy of the notice ex- 
ecuted, as required in the first section of this act And 
such suit shall be docketed and conducted as other suits 
in said courts." 

The bill in this case by its averments fully complies 
with above directions of the act with regard to notice. 
G. H. Cole & Co., the subcontractors to whom the ma- 
terials were furnished, are not made parties. The bill 
allies that the Mason & Hoge Company had the con- 
tract originally with the railroad company to construct 
the Dossett tunnel. They sublet the work of construc- 
tion to G. H. Cole & Co. as subcontractors, to which the 
railroad company agreed. 

This latter company began the work of construction 
September 15, 1902, but failed to comply with the terms 
of their contract, and certain modifications of the con- 
tract were agreed upon between them and Mason & Hoge 
Company. G. H. Cole & Co. finally failed to carry out 
their contract and became wholly insolvent, so that, 
under the provisions of the contract between the two, 



11 Gates] SEPTEMBER TERM, 1907. 501 

Luttrell y. Railroad. 

the Mason & Hoge Company, on November 30, 1903, 
took charge themselves of the work. G. H. Cole & Co., 
voluntarily retired from the work, and delivered to 
Mason & Hoge Company all the materials then on hand, 
which had been furnished by complainants to the former 
company, and the latter company prosecuted the work 
to completion, completing it the 1st of April, 1905. 

The bill exhibits an itemized statement of the account 
of materials, supplies, etc., furnished by complainants 
to G. H. Cole & Co., showing a balance due thereon and 
unpaid of f 10,506.45, and alleges that the whole of these 
weie used in. the construction of the tunnel, a part by 
G. H. Cole & Co., and the remainder by Mason & Hoge 
Company. 

The railroad companies answer to the merits, and 
interpose no objection by demurrer or otherwise on ac- 
count of the failure of complainants to make G. H. Cole 
& Co. parties. The Mason & Hoge Company, also, an- 
swer fully to the merits. 

The railroad company holds a contract of indemnity 
from Mason & Hoge Company, and that company, in 
their answer, admit that certain portions of the mater- 
ials furnished by complainants to G. H. Cole & Co., 
amounting to f 467.38, are liens. They tender this 
amount to complainants in full settlement of their claim. 
It being refused, the money is paid into court ; and they 
deny that complainants are entitled to lien for any of 
the other articles. 



502 TENNESSEE REPORTS. [119 Tenn. 

Luttrell y. Railroad. 

While the act does not expressly provide that the 
party to whom the materials are furnished, the subcon- 
tractors, G. H. Cole & Co., in this case shall be made 
parties, the authorities are to the effect that this is 
necessary. In 2 Jones on Liens, section 1303, it is said : 

"A subcontractor who holds an open, unsettled, or 
disputed account against the principal contractor should 
obtain an adjudication of this before seeking to establish 
a lien against the owner, or at the same time that he 
seeks to do so. He should either obtain a judgment 
against the contractor before bringing an action to en- 
force the lien, or he should make the contractor a party 
to that action. The burden of ascertaining whether 
there is any defense to the action ought not to be put 
upon the owner of the property. He is not presumed to 
have any knowledge upon the subject. Further than 
this, if the contractor establishes his lien against the 
property, and the owner is compelled to pay it, he has 
recourse on the principal contractor. He ought to be 
furnished with an adjudicated claim, and not with a 
mere open account.'^ 

In Vreeland v. Ellsworth, 71 Iowa, 347, 23 N. W., 374, 
it is said : 

"We have the question, whether a subcontractor, who 
holds an open, unliquidated, and unsettled account 
against the principal contractor, may bring his action 
against the owner of the building or improvement, and 
establish a mechanic's lien upon the property, without 
adjudicating the claim or attempting to adjudicate in 



11 Gates] SEPTEMBEB TERM, 1907. 503 

Lruttrell y. Railroad. 

any way against the contractor, who is the person pri- 
marily liable upon the account. We think this question 
must be answered in the negative. If the claim were 
liquidated, it may be the principal contractor would 
not be a necessary party. But that question we need not 
determine. This is an open, unliquidated account— a 
mere charge against the contractor. The burden of as- 
certaining whether there is any defense to the action 
ought not to be put upon the owner of the property. He 
is not presumed to have any knowledge upon the sub- 
ject. Further than this, if the subcontractor establishes 
his lien against the property, and the owner is com- 
pelled to pay it, he has recourse on the principal con- 
tractor. He ought to be furnished with an adjudicated 
claim, and not with a mere open account.^' 

To the same effect are the following : May & Thomas 
Hardware Co. v. McConnell, 102 Ala., 577, 14 South., 
768; Gumming v. Wright, 72 Ga., 767; Murdoch v. Hilh 
yer, 45 Mo. App. 287; Ashhum v. Ayers, 28 Mo., 77; 
Estey V. Hallack, etc., Lumber Co., 4 Colo. App., 165, 
34 Pac, 1113; Thompson v. Oilmore, 50 Me., 435. 

In Warner v. Yates & Co., 118 Tenn., 548, 102 S. W., 
92, which was under chapter 67, p. 79, of the Acts of 
1881, as amended by chapter 103, p. 207, of the Acts of 
1889, construing that peculiar statute, it is said : "The 
principal contractor is a necessary party, because he is 
the debtor sued, and the owner of the property, because 
it is sought to reach his or her property. They are both 
interested, and must have their day in court; otherwise, 



504 TENNESSEE KEPORTS. [119 Tenn. 

Lattrell t. RaUroad. 

there would be a failure of due process of law. The prin- 
cipal contractor has the right to controTert the indebt- 
edness claimed, and the owner of the property the exist- 
ence of the lien sought to be enforced, and the action 
cannot be maintained without establishing both the debt 
and the lien." | 

While it is true that G. H. Cole & Co. are proper par- 
ties, we think that the railroad companies have waived 
their right to make the question by answering to the 
merits, without making the objection by demurrer or 
otherwise. 

It is insisted that the amendment to the answer makes 
the question, where it is denied ^'that the complainants 
have taken the necessary steps in this case to fix a lien 
in their favor upon respondents* railroad and property, 
and they deny that complainants have acquired or are 
entitled to any lien upon respondents' property for the 
payment of their alleged claim." 

This is no more than a repetition of the denials of the 
answer as originally filed, which simply make an issue 
upon the allegations of the bill as to whether the mater- 
ials claimed were furnished to G. H. Cole & Co., for the 
construction of the tunnel, and were used for that pur- 
pose, whether the notice has been given as prescribed by 
the statute, whether the bill has been filed in time there- 
after—in short, whether complainants had taken the 
proper preliminary steps prescribed in the act, so as to 
enable them to maintain a suit to enforce the lien. 

Looking to these pleadings, and the decree of the 



11 Gates] SEPTEMBEE TERM, 1907. 505 

Luttrell y. fedlroad. 

chancellor, it does not appear that the question of the 
failure of complainants to first establish their claim 
against G. H. Cole & Co. by suit and judgment, or to 
make them defendants in this case, was made in the 
lower court, or directly raised or determined there; and 
it cannot be made in this court. 

In addition to this, the evidence by complainants to 
show that the materials claimed were furnished G.- H. 
Cole & Co. and by them used in the construction of the 
tunnel, was admitted without objection on the part of 
defendants. 

In the case of Noll & Thompson v. Railroad, 112 
Tenn., 140, 79 S. W., 380, it is held that the defects in a 
subcontractor's notice to. a railroad of his lien, or the 
failure to give such notice, may be waived by defend- 
ant, and same is waived by not making the objection in 
the court below. It is said in that case : 

"The object of the notice required by the statute is to 
apprise the railroad company of the amount claimed, 
and thus put it in a position where it can protect itself 
against overpayments to the original contractor. While 
it performs this important function, yet, like any other 
benefit, it may be waived by the party in whose interest 
it is created. And a waiver can very well be assumed 
unless a timely objection is made to the notice. Such 
objection, we think, comes too late when made for the 
first time on appeal.'^ 

It is next insisted that the decree of the chancellor 
is erroneotis, because the chancery court has not ac- 



' 506 TENNESSEE REPORTS. [119 Tenn. 

Luttrell Y. Railroad. 

quired jurisdiction over the property of the railroad 
companies, and no authority to enforce any lien thereon, 
because complainants did not bring the property into 
the custody of the court by attachment or other appro- 
priate process. 

There is no provision in the act of 1891, and none in 
the act of 1883, requiring the issuance and levy of at- 
tachment on the property sought to be objected. 

The bill is framed in strict conformity with the pro- 
visions of sections 2 and 3 of the act. It describes the 
lines of railroad upon which the lien is sought as lead- 
ing from Jellico, through the counties of Campbell, 
Anderson, and Knox, to Knoxville. The contract for 
the construction of a large part of this line was awarded 
to Mason & Hoge Company, who sublet a part of the 
<ionstruction to Q. H. Cole & Co., including that portion 
of the road comprising Dossett'p tunnel and its ap- 
proaches thereto; the portion thus sublet lying in Ander- 
son county. 

The bill is sworn to, but no attachment is issued. No 
question is made in the answer with regard to the de- 
scription of the property; and by the decree of the chan- 
cellor the lien is declared upon the property by substan- 
tially the description given in the bill. 

Referring to creditors' bill to set aside fraudulent con- 
veyances, where the court has proper service on defend- 
ant, it is said, in the case of Aiigtcst & Bing v. Seeskind 
€f aZ., eCold., 173: 

"Having thus obtained jurisdiction, the court may 



I 



11 Gates] SEPTEMBEE TERM, 1907. 507 

Luttrell T. Railroad. 

rightfully proceed to decree upon the equity of the 
cause, and give such relief to the complainant as may 
be suitable to the equity alleged and established. If the 
subject-matter of the controversy be property of any 
kind, the court may decree such relief as may be proper 
to the equities of the parties, and execute such relief by , 
process suitable to the purpose. Seizure of the property, 
pending the litigation, or at the b^inning, is not gener- 
ally essential to give the court jurisdiction over it and 
to enforce the proper relief in respect of it" 

It is further said that if, during the progress of the 
suit, fear arises that the property may be wasted, upon 
proper showing the chancellor will issue process to seize 
and impound it. This is only auxiliary to the jurisdic- 
tion of the court. ^^But,'' as said, ^4t is not essential to 
the jurisdiction of the court, to enable it to proceed to 
decree upon the matter in controversy, that the prop- 
erty be seized or impounded." 

The right of the court of equity to enforce a lien upon 
property without seizure by attachment is enforced in 
Bryan v. Zarecor, 112 Tenn., 511, 81 S. W., 1252, when 
the property is specifically described in the bill. 

In Central Trust Co. v. Condon, 67 Fed., 106, 14 O. 0. 
A,, 314, the case was a bill to enforce a lien of subcon- 
tractors and materialmen under the act of 1883. The 
facts arose before the passage of the amendatory act of 
1891. The bill set out the facts constituting the lien, 
and described the property, and prayed for a sale of the 
property. There was no attachment prayed for or is- 



508 TENNESSEE EEPORTS. [119 Tenn.. 

Luttrell y. Railroad. 

sued. Judge Taft, speaking for the court of appeals 
of the sixth circuit of the United States, said : "It is. 
clearly a suit to enforce a subcontractors' lien, for other- 
wise the court could not enforce it.'' 

He further says : "The statute does not provide that 
> an attachment should issue in suits to enforce railroad 
liens. It is true thajt under the mechanic's lien law of 
Tennessee the lien must be enforced by attachment, but 
this is because the section expressly requires it. There 
is no such provision in the railroad lien law. The lien 
of the principal contractor is to be enforced merely by 
suit, and the form of the declaration is prescribed in the 
statute. The lien of the subcontractor may be enforced 
by suit against the principal contractor as principal deb- 
tor and against the company as garnishee, but there ia 
not a suggestion in the statute that attachments are nec- 
essary to the perfecting of a lien." 

The uniform policy has been to give to the mechanic'^ 
lien law a liberal construction to carry out its purpose^ 
and to secure and protect those entitled to the lien, and 
thereby to promote and encourge improvements. Barnes 
V. Thompsoriy 2 Swan, 215 ; Alley & Biirk v. Lanier, 1 
Cold., 541 ; Kai/ v. Smith, 10 Heisk., 42 ; Steger v. Arctic 
Refrigerator Co., 89 Tenn., 453, 14 S. W., 1087, 11 L. R. 
A., 580; Ragon v. Howard, 97 Tenn., 341, 37 S. W., 236. 
In the last-named case it is said: "It is, and has been, 
the policy of our law to protect and enforce this lien of 
mechanics and furnishers and not allow them to be de- 
feated by any technical niceties of construction." 



11 Gates] SEPTEMBER TEEM, 1907. 509 

Luttrell v. Railroad. 

Without further discussion of the authorities, we 
think this first assignment of error by the railroad com- 
panies is not well taken, and the same is oyerruled. 

Upon final hearing the chancellor decrees that com- 
plainants are entitled to lien upon the property of the 
railroad for any dynamite, fuse, blasting powder, blast- 
ing wire, wire fuses, gasoline and gasoline torches, coal 
oil, nails, nuts and bolts, soft steel and iron, and build- 
ing material for shanties for the men, shown on the ac- 
<:ount, but that complainants are not entitled to lien for 
any of the other articles set out in the account. As the 
parties cannot agree upon the value of the articles so 
declared liens, the cause is referred to B. H. Sansom, 
Esq., who is appointed special commissioner, or master, 
to report thereon. 

It is further adjudged that complainants have a lien 
on the property of the railroad for the payment of what 
may appear to have been declared a lien upon the.coming 
in of the report of the special master, notwithstanding 
the fact that they caused no injunction to be issued, and 
no attachment to be issued and levied on the property of 
the railroad. 

The special master makes his report in accordance 
with this reference, which is confirmed, without excep- 
tion by either side, by final decree in the cause; and it is 
decreed that complainant have a lien for the following : 
Dynamite, fuse, blasting wire, and wire fuse. | 267.84 

Gasoline 224.95 

Oasoline torches 49.50 



510 TENNESSEE EEPOBTS. [119 Tenn. 

Luttrell T. Railroad. 

Coal oil 53.78 

Nails, nuts, washers, bolts, soft steel, and iron 803.72 
Building material for shanties 855.43 

Making total |2,255.22 

The railroad companies are allowed 30 days in which 
to pay said amount into court, and upon default their 
property is decreed to be sold. 

The second assignment of error by the railroad com- 
panies is with regard to the allowance of lien for the 
articles above referred to, aggregating f 2,255.22. While 
defendants contest lien for any amount upon their prop- 
erty, Mason & Hoge Company paid into court an amount 
to cover the first item above of |267.84, and also |201.72; 
the latter sum being that part of the item for nails, nuts, 
etc., of 1803.72, which they admitted are lienable. This 
thus leaves the remainder of that allowed by the chan- 
cellor to which defendants' assignment of error applies. 

The assignments of error by complainants are with 
reference to the balance of their account, less the sum 
of f 1,848.07, which was for steel rails used in the con- 
struction of a tramway, but were not consumed in use; 
the claim being for all materials and supplies furnished 
G. H. Cole & Co. that were consumed in their use for the 
construction of the tunnel which consist of all the other 
articles in their account, the subcontractor's plant and 
outfit, machinery, tools, etc., and repairs of same, and 
supplies for same. 

It may be said that the assignments of error of both 



11 Gates] SEPTEMBER TERM, 1907. 511 

Luttrell y. Railroad. 

complainantB and defendants relate to materials for- 
nished for all these purposes, for some of which the 
chancellor allowed lien, and for some he did not. 

The title to chapter 220, p. 296, of the Acts of 1883, is 
"An act to protect contractors, subcontractors, me- 
chanics, laborers, and engineers who perform work or 
furnish materials for the construction or repair of rail- 
roads." 

Chapter 98, p. 215, of the Acts of 1891, was to amend 
that act, as stated in its title, "providing a prior lien 
for and giving greater security" to the parties named 
therein. The portion of section 1 of this act necessary 
to be referred to in this connection is as follows: 

"That section 3 of an act passed March 29, 1883, as 
referred to in the caption of this bill, the same being sec- 
tion 2778 of Milliken & Vertrees' Compilation of the 
Laws of Tennessee, be and the same is hereby amended 
so as to provide that hereafter every subcontractor, 
laborer, materialman or other person who performs any 
part of the work in grading any railroad company's 
roadway, or who constructs or aids in the construction 
or repairs of its culverts and bridges, or furnishes cross 
ties or masonry or bridge timbers for the same, which 
is used in the building and construction of such rail- 
road, its bridges and culverts, or who lays or aids in the 
laying of its track, building of its bridges, the erection 
of its depots, platforms, wood or water stations, section 
houses, machine shops or other buildings, or for the de- 
livery of material for any of these purposes, or for any 



512 TENNESSEE REPORTS. [119 Tenn. 

Luttrell T. Railroad. 

engineering or sui)epintendence, op who performs any 
valuable service, manual or professional, by which any 
such railroad company receives a benefit, all and every 
such person or persons shall have a lien on such rail- 
road, its franchises and property, for the value of such 
Avork and labor done, or material furnished, or services 
rendered, as hereinbefore set out and specified, in as full 
and ample a manner as is now provided by law for per- 
sons contracting directly with such railroad company 
for any such work and labor done, or for material fur- 
nished. . . .'^ 

As already stated, the material, supplies, etc., were 
furnished by complainants to G. H. Cole & Co., subcon- 
tractors under Mason & Hoge Company, and they were 
used and consumed in the construction, for the Knox- 
ville, La Follette & Jellico Railroad Co., of the Dossett 
tunnel, a tunnel about one thousand two hundred yards 
long, which required about three years for completion. 

The lien is conferred alone, by the act, and its lan- 
guage must, of course, control. The lien is given in 
favor of the materialman "for the delivery of material" 
to the subcontractor "who performs any part of the 
work in grading any railroad company's roadway, or 
wlio constructs or aids in the construction or repairs of 
its culverts and bridges, ... or who lays or aids 
in the laying of its track.'' 

In Pouter Co. v. Railroad, 113 Tenn., 392, 83 S. W., 
354, 67 L. R. A., 487, 106 Am. St. Rep., 836, it is held 



11 Gates] SEPTEMBER TERM, 1907. 513 

Luttrell y. Railroad. 

that explosives, furnished to G, H.' Cole & Co., used in 
blasting in this Dossett's tunnel, are materials for which 
the furnisher is entitled to lien. It is said : "The con- 
sumption of explosives is the only use that can be made 
of them, and their consumption is absolutely necessary 
to the excavation of tunnels through rock. In other 
words, they are material which enter into the building 
and grading of the road, as much so as trestles, bridges, 
and culverts contain materials which are necessary to 
the grading of the road at such places as require trestles 
and bridges and culverts." 

We refer first to the building materials furnished for 
the erection of shanties. These shanties were erected 
on lands adjacent to the right of way for the railroad, 
and upon lands leased for that purpose, and they were 
used for shelter for the workmen. 

Upon the question as to whether the materialman 
has a lien for materials furnished in good faith to be 
used in the construction, but which in fact were not 
used, the court, in Powder Co. v. Railroad, 118 Tenn., 
404, 83 S. W., 354, 67 L. R. A., 487, 106 Am. St. Rep., 
836, cites the case of Stewart ChtUe Lumber Co. v. 
Missouri Pacific Railway Co., 28 Neb., 39, 44 N. W., 48, 
decided by the supreme court of Nebraska, under the 
statute of that State somewhat similar to ours. The 
holding of that case is approved to the effect that the 
lien of the materialman attaches upon the de- 
livery in good faith of the material to the subcontract- 

119 Tenn.— 33 



514 TENNESSEE REPORTS. [119 Tenn. 

Luttrell T. Railroad. 

OP, and it is not necessary that the material furnished 
should have been actually used in the improvement. 

This Nebraska case further held that lumber and 
other material furnished to the subcontractor for the 
erection of shanty boarding houses for the workmen and 
stables for the horses, erected adjacent to the right of 
way of the railroad, were liens under that statute. 
The decision in that case on this subject was by a divided 
court, and upon rehearing it was overruled by the opin- 
ion reported in 33 Neb., 39, 49 N. W., 769. This decision 
is based upon the particular language of the Nebraska 
statute. There the lien is given for material which 
"shall have been furnished or labor performed in the 
construction, repair and equipment of any railroad.^'' 
The court says : 

"These words do not include lumber, material, or labor 
which was not performed or furnished in the construc- 
tion, repair, or equipment of the road. If this were not 
so, there would be no limit to the liability of a railway 
company. If, by a strained construction of the statute, 
the company is held liable for material used for shanties,, 
it would by the same rule be liable also for food and 
clothing for the employees and feed for the teams ; and 
it would be difficult to tell where its liability would 
cease. The lien is created by statute, and independently 
of that no cause of action exists against the company."" 

The court cites as in accord the case of Dudley v. 
Railivay Co,, decided by the supreme court of Michigan,, 
and reported in 65 Mich., 655, 32 N. W., 885. 



11 Gates] SEPTEMBER TERM, 1907. 515 

Luttrell y. Railroad. 

The first decision in the Nebraska case is referred to 
in Powder Co. v. Railroad, as authority that the mater- 
ialman is entitled to a lien for materials furnished in 
good faith to the subcontractor, whether they were actu- 
ally used in the construction or not. The holding of the 
Nebraska case that there was a lien for the lumber fur- 
nished for the shanties and stables is referred to only in- 
cidentally. 

The materials furnished for these shanties were not 
put upon the right of way of the railroad, and did not 
go into the construction thereof, and are not lienable 
material under the act. 

The other articles for which the chancellor allowed 
lien are gasoline, gasoline torches, and coal oil. They 
were used for lighting the tunnel. The gasoline torches 
were used as small vessels to contain and utilize the 
gasoline; the work in the tunnel having been prosecuted 
day and night. The other articles, for which lien was 
denied, consist of packing, mattocks, cotton waste, elec- 
tric light supplies, carts, tools, shovels, spades black- 
smith tools, wagons, scrapers, plows, machines, machin- 
ery, derricks, derrick crabs, cables and repairs for all 
these. 

Counsel for complainant in their brief say: "Con- 
fessedly the dynamite and the powder are liens; but 
the dynamite and powder could not- be used without the 
drill to bore the hole in the rocks, and the drill could 
not be used without the engine and boiler, and the 
engine and boiler could not be used without the cotton 



516 TENNESSEE REPORTS. [119 Tenn. 

Luttrell y. Railroad. 

waste and the lubricating oil. The cotton waste and 
the oil and the steel drills were all alike completely con- 
sumed in the use." 

The contention is that complainants are entitled to 
lien for the articles referred to, because, from the char- 
acter of the work of construction and the length of time 
required, they were necessarily consumed or destroyed 
in the use, some within a few hours or days, while 
some would last for months, and all were indispensable 
to the work. 

The same principle can be as properly applied with 
regard to horses and mules that may be employed in 
hauling, which, on account of the hard and heavy 
draughts and long-continued work, are broken down and 
rendered worthless and useless. And thus the furnisher 
would have a lien on the railroad property for the whole 
outfit of the subcontractor, in addition to all the ma- 
terials which were furnished for, or went into, the con- 
struction. 

This would be a construction of the act which extends 
far beyond the intention of the legislature. The test is 
not whether the article furnished was consumed in its 
use, either instantly, as in case of explosives, or by de- 
grees from long and hard use. If lien is allowed for 
tools and machinery, and horses and mules, for com- 
plete destruction, on the same principle it should be al- 
lowed for deterioration in value pro tanto, when not 
completely destroyed. 

In Powder Co. v. Railroad, supra, the following j« 



11 Gates] SEPTEMBER TEEM, 1907. 517 

Luttrell y. Railroad. 

quoted from Elliott on Railroads: "But a lien cannot be 
obtained for machinery furnished to a contractor to be 
used in doing the work upon a bridge, under a statute 
authorizing a lien for all materials ^used in and about' 
the construction of a bridge." 

In this connection it is said (pages 396, 397) : 

"All of the decisions upon this subject draw a clear 
distinction between the explosives and explosive sup- 
plies used in the construction of a railroad company's 
roadway, and which are necessarily consumed in the 
use thereof, and machinery and tools furnished for that 
purpose, which are held to be a part of the contractor's 
plant, and which do not go into the building of the road- 
way, but retain their identity and fitness for future use, 
saying the limited and gradual wear and tear incident 
to such use. The explosives which are necessarily con- 
sumed in the use are held to be liens, while the tools 
and equipment which constitute the contractor's plant 
do not constitute liens under the several lien statutes.'^ 

There is cited in support of this the case of Chiant 
Powder Co. v. Oregon Padfio Railway Co. (C. 0), 42 
Fed., 474, 8 L. RL A., 700, distinguishing the case of 
Baashor v. Railroad Co., 65 Md., 99, 3 Atl., 285, 

Rapalje & Mack's Digest of Railway Law, vol. 6, p. 
284, digests many cases upon this question, and lays 
down the rule as adjudged therein in the following lan- 
guage: 

"In providing that a materialman shall have a lien 
for all materials furnished for, or used in and about, the 



518 TENNESSEE BEPOETS. [119 Tenn. 

Lattrell y. Railroad. 

construction of bridges, the law Ineans such material 
as ordinarily enter into or are used in the construction 
of bridges, and are fairly within the express or implied 
terms of the contract between the owner and the con- 
tractor. It does not mean the machinery that may be 
used for the manufacture of the materials themselves. 

''Where a contractor for building a bridge buys ma- 
chinery for crushing stone to be used in the manufac- 
ture of artificial stone for the masonry work, and also 
appliances to carry the manufactured stone to the place 
where it is to be used, the seller of such machinery and 
appliances has no lien therefor under the provision of 
Maryland mechanic's lien law, which gives a material- 
man a lien for all materials furnished for, or used in 
and about, the construction of bridges.^' 

Section 3200, Rev. St. Mo. 1879 [Ann. St 1906, sec- 
tion 4239], provides ''that all persons who shall do any 
work or labor in constructing or improving the roadbed, 
rolling stock, station houses, depots, bridges or culverts 
of any railroad company, . and all persons 

who shall furnish ties, fuel, bridges or material to such 
railroad company, shall have ... a lien,'* etc. In 
the case of Central Trust Co. v. Texas d 8t. L. Ry. Co., 
(C. C), 23 Fed., 703, the United States circuit court 
held that "lubricating and illuminating oils are not 'ma- 
terials,' within the meaning of section 3200 of the Mis- 
souri Revised Statutes, and parties furnishing them are 
not entitled to any statutory lien.'* 

If the tools, carts, and machinery furnished as a i>art 



11 Gates] SEPTEMBER TEEM, 1907. 519 

Luttrell v. Railroad. 

of the subcontractor's outfit are not lienable artieles 
under the act, it follows that the repairs and appliances 
used or needed in operating same would stand on the 
same ground. 

liastly, lien is claimed for the table ware and commis- 
sary supplies. 

It is claimed that these articles were necessary to 
afford to the workmen cooking stoves, table furnishings, 
and supplies in a commissary which was kept by the sub- 
contractor, and the material furnished to the workmen 
in part payment for their labor. 

Again, in Powder Co. v. Railroad, supra, the court 
adopts the language of the authority there cited, that 
"the food furnished a contractor for his workmen may 
be said to be ^used' and ^consumed' in the construction of 
the road on which they work, but this is only so in a 
remote and consequential way or sense. The food does 
not enter directly into the structure, and is not so 
used.'* 

In Elliott on Railroads, section 1068, it is said : "So 
of course, groceries and food furnished for the workmen, 
while in a sense used in the construction of the road, 
are not materials which so ^nter into its construction 
that a lien can be based upon them." 

The stove upon which to cook the food, and the table- 
ware out of which to eat it, are too remote; and the leg- 
islature did not intend to give lien for such. The same 
principle would apply to clothing furnished the work- 
men, bedclothing upon which to sleep, coal and wood for 



520 TENNESSEE BEPOETS. [119 Tenn. 

Luttrell y. Railroad. 

fires by which to warm, and it might be extended indefi- 
nitely to any number of InxnriesL 

The result of the above holding is that none of the 
materials included in the account of complainants, 
made exhibit to the bill, are lienable materials, excepting 
the items for dynamite, fuse, blasting wire, and wire 
fuse, and the items for nails, nuts, washers, bolts, soft 
steel and iron, which went into the construction of the 
lining and approaches to the tunnel. 

The cause is remanded to the chancery court, to be 
further proceeded with in accordance with this opinion. 
The costs of the appeal will be paid by complaintants. 
The costs of the chancery court will be paid as adjudged 
by the chancellor. 



11 Gates] SEPTEMBER TEEM, 1907. 521 

state Y. Smith. 

State v. Frank Smith. 
( Knoxville. September Term, 1907.) 

1. CONSxiTUTiONAIi LAW. Amendatory atatate miurt recite 
the title or eubstanoe of the law souglit to be expressly 
amended. 

Acts 1899, ch. 881, expressly nndertaking to amend Acts 1897, 
ch. 106, making it a felony for any one to knowingly, willfully, 
and maliciously cut or remove timber, for market, from the 
land of another, without the owner's consent, by striking out 
the words "and maliciously," is Toid because of its failure to 
recite in its caption or otherwise the title or substance of 
the law sought to be amended as required by the oonstitutionj 
(Post, p. 524.) 

Acts cited and construed: Acts 1897, ch. 106; Acts 1899, ch. 
881. 

Constitution cited and construed: Art 2, sec. 17. 

Case cited and approved: Railroad t. State, 110 Tenn., 598. 

2. INDIOTMENTS. For statutory offenses should pursue the 
statute; substituted equivalent word does • not invalidate 
indictment. 

It is always best for the indictment for a statutory offense to 
pursue the words of the statute; but where a substituted word 
is equivalent to the one in the statute, or is of more exten- 
sive signification, and includes it, the indictment will be sufil- 
dent (Post, pp. 624', 625.) 

Cases cited and approved: Peek v. State, 2 Humph., 86; Starks 
V. State, 7 Bax., 66; State v. Pennington, 8 Head, 120. 



i 



522 TENNESSEE REPORTS.. [119 Tenn. 

state Y. Smith. 

3. CSimVAIi liAW. Word "knowingly/' as naed in criminal 
statutes, defined. 

Tlie word "knowingly/' as used in criminal statutes, means that 
state of mind wherein the person charged was in possession 
of facts under which he was aware he could not lawfully do 
the act whereof he is charged; knowledge of the law being nec- 
essarily imputed to him, as in all criminal cases. (Post, p. 
625.) ] 

Case cited and approved: McGuire t. State, 7 Humph., 54. 

4. BAHB. Word "willfully," as used in criminal statutes, 
defined. 

The word "willfully," as used in criminal statutes, means in- 
tentionally; that is, that the person doing the act intended at 
the time to perform the particular act (Po8t, p, 525.) 

4i, BAMB. Word * 'maliciously," as used in criminal statutes, 
defined. 
The word "malidously," used in a criminal statute as appears 
in the first headnote, is used in the broad, legal sense of crim- 
inal intention, or that state of mind of a person who does a 
wrongful act intentionally or willfully, and without legal jus- 
tification or excuse. {Post, p. 625.) 

•6. 8AHB. Words ''knowingly," «wUUully,' ' and <*maUciously," 
taken together, defined. 
The words, 'Ttnowingly," "willfully," and "maliciously," taken 
together, comtemplate a case wherein a man acts adyisedly, 
intentionally, and with criminal intent, or that state of mind of 
a person who does a wrongful act intentionally or willfully, 
and without legal Justification or excuse. (Post, pp. 625, 626.) 

T. BAMS. Word < 'feloniously" deiined; and includes ''mali- 
ciously." 
The word "feloniously" means with a deliberate intent to com- 
mit a wrongful act, contrary to law, constituting an offense, 
an act done with intent to commit a crime, and, as so used, 
includes "maliciously." (Post, pp. 526, 627.) ^ 

• I 



11 Gates] SEPTEMBER TERM, 1907. 523 

state v. Smith. 

Cases cited and approved: Toung v. Commonwealth, 12 Bush 
(Ky.), 243; Aikman v. Commonwealth, 18 8. W., 937, 13 Ky. 
Law Rep., 894; Shotwell y. State, 43 Ark., 847; Commonwealth 
y. Carson, 166 Pa., 183; Whitman v. State, 17 Neb., 224. 

8. BAKE. Bubirtitiition of "lalonioualy" lor '"malicioiisly" does 
not Titiate the indictment, when. 
The substitution of the word "feloniously** for the word ''malic- 
iously** in an indictment under the statute stated in the first 
headnote is suiBcient, and does not yitiate the indictment. 
(P09t, pp. 626-627.) 



FROM BLEDSOE. 



Appeal in error from the Circuit Court of Bledsoe 
County.— Joseph C. Higgins, Judge. 

Attoeney-Qbnbral Cates, for State. 
No counsel marked for Smith. 



Mr. Justice Neil delivered the opinion of the Court. 

The indictment in this case charged that the plaintiff 

in error "on the day of April, 1906, and on divers 

other days prior to that date, and up to the finding of 
this indictment, in the State and county aforesaid, did 
unlawfully, knowingly, willfully, and feloniously cut 
and remove from said tract of land" (previously de- 
scribed in the indictment) "timber growing upon said 



524 TENNESSEE REPORTS. [119 Tenn. 

State y. Smith. 

land, for the purpose of marketing the same, without 
the consent of said John C5. Myers and William C. 
Johnson, the OT^Tiers in fee of said tract of land, con- 
trary to the said form of the statute in such case made 
and provided, and against the peace and dignity of the 
State." 

This indictment was based on chapter 106, p. 257, of 
the Acts of 1897. That act provides that it shall be a 
felony for any one to ^Ttnowingly, willfully, and malic- 
iously cut or to remove, for the purpose of marketing 
the same, timber from the lands of another, without the 
consent of the owner of the timber so cut or removed." 

By chapter 381, p. 889, of the Acts of 1899, an effort 
was made to amend the foregoing statute by striking out 
the words "and maliciously;" but this latter act is vcjd, 
because it violates article 2, section 17, of the constitu- 
tion, since it does not recite in its caption or otherwise 
the title or substance of the law sought to be amended. 
Memphis Street Ry. Go. v. State, 110 Tenn., 598, 75 S. 
W., 730. 

In the court below the indictment in the present case 
was quashed because it omitted the word "maliciously," 
and substituted therefor the word "feloniously." The 
question to be determined is whether the substituted 
word supplied the place of the word omitted. 

It is always best to pursue the words of the statute; 
but where a word not in the statute is substituted for 
one that is, and the word thus substituted is equivalent 
to the word used in the statute, or is of more extensive 



11 Gates] SEPTEMBER TERM, 1907. 525 

state ▼. SmitlL 

signification than it, and includes it, the indictment will 
be sufficient Peek v. State, 2 Humph., 85; Starks v. 
State, 7 Baxt., 65; State v. Pennington, 3 Head, 120. 

In order to a correct determination of the question 
whether the word "feloniously" was a proper substitu- 
tion for the word "maliciously" in the statute referred 
to, it is necessary that we construe all three of the sig- 
nificant words defining the offense, and ascertain the 
meaning of the word "maliciously^' in the connection in 
which it stands. 

The word "knowingly" has been construed by this 
court as being that state of mind wherein the person 
charged was in possession of facts under which he was 
aware he could not lawfully do the act whereof he was 
charged; knowledge of the law being necessarily im- 
puted to him, as in all criminal cases. This was held in 
a case wherein the party was indicted for ill^al voting 
under a statute which provided that "any person who 
shall knowingly vote at any election, not being at the 
time a qualified voter in the county in which he so votes, 
shall be adjudged guilty of a misdemeanor," etc. Mc- 
Gnire v. StatCy 7 Humph., 54. "Willfully" means inten- 
tionally; that IS, that the person doing the act intended 
at the time to perform that act. The word "malic- 
iously," in the connection in which it appears, is used in 
the broad, legal sense of criminal intention, or that state 
of mind of a person who does a wrongful act intention- 
ally or willfully, and without legal justification or ex- 
cuse. The three terms taken together contemplate a 



526 TENNESSEE REPORTS. [119 Tenn. 

state Y. Smith. 

case wherein a man acts advisedly, intentionally, and 
with criminal intent, in the sense in which the latter 
expression has been just explained. The word "felon- 
ionsly'' fully covers the meaning of the word "mali- 
ciously" just indicated. 

"Feloniously*' is. defined in the Century Dictionary 
as follows : "With deliberate intent to commit a wrong- 
ful act, the act being in law such as constitutes a crime 
of the class termed felonies." In Webster's Interna- 
tional Dictionary one meaning attached to the word is : 
"In a legal sense, done with the intent to commit 
a crime." 

In comparing the judicial definitions of the words 
"felonious" and "feloniously" in Words & Phrases Judi- 
cially Defined, vol. 3, p. 2731 et seq., with the judicial 
definitions of the word "malicious" in volume 5 of the 
same work, at page 4307, it is ifound that these words are 
often construed to have the same meaning, viz : "with 
criminal intent," or "with intent to commit a crime." 

In Young v. Commonwealth, 12 Bush (Ky.), 243, and 
in Aikfiian v. Commonicealth, 18 S. W., 937, 13 Ky. Law 
Rep., 894, it is held that the word "feloniously" in- 
cludes "maliciously and unlawfully." 

In Shotvyell v. fitate, 43 Ark., 347, it was held that 
where the word "maliciously" was used in a statute 
providing punishment for burglary, in charging the of- 
fense the use of the words "feloniously, willfully, and 
burglariously," instead of "willfully and maliciously," 
was sufficient, as by the use of the word "maliciously" 



11 Gates] SEPTEMBER TERM, 1907. 52T 

state y. Smith. 

in the statute the legislatiire did not intend that malice 
towards the owner should become an element in the in- 
tent. 

In Pennsylvania it is held that the word "feloniously'^ 
includes "maliciously." Commoniaealth v. Carson, 166 
Pa., 183, 30 Atl., 985. And in Whitman v. State, 17 
Neb., 224, 22 N. W., 459, it was held that ^Maliciously"" 
is included in the words "unlawfully, willfully, pur- 
posely, and feloniously." 

On the grounds stated, we are of the opinion that the 
substitution of the word "feloniously" for the word 
'^maliciously" in the indictment under examination wa» 
sufficient, and the circuit judge erred in quashing the 
indictment. 

The judgment will therefore be reversed, and the 
cause remanded for issue and trial. 



528 TENNESSEE REPORTS. [119 Tenn. 



Railroad y. Bickley. 



Southern Railway Company v. Bickley, MoClubb & 

Company. 

{Knoxville. September Term, 1907.) 

1. COMMON 0A&RISB8. BeUvery of trunk is essential to 
create liability tor its loss. 

Delivery of a trunk, actual or conBtructive, to a common carrier 
is essential to render it liable as such for its loss. {Post, pp. 
530, 532.) 

2. 8AMB. Same. Delivery of trunk check issued by one rail* 
road to the agent of another railroad is not a constructlYe 
delivery of the trunk to the latter railroad, when. 

There is no constructive delivery of a trunk to a railroad so as 
to render it liable for the loss thereof, where Its station agent 
accepted a check issued by another railroad for its transpor- 
tation to a station common to both railroads, • at which they 
had a common agent and common depot, and agreed to have 
the trunk brought over the line of his railroad, and to for*' 
ward it to the destination of the person delivering the check, 
but failed to do so, and the trunk was subsequently burned 
while at the said common station to which it was checked by 
the accepted check. 

Case cited and approved: Stewart v. Gracey, 93 Tenn., 314. 

Case cited and distinguished: Railroad v. Weaver, 9 Lea, 38. 

8. APPEALS. Dismissal of suit upon reversal of judgment for 
plaintiff without a Jury, when. 
Upon reversal of a judgment rendered in favor of the plaintiff by 
the lower court, without the intervention of a jury, the su- 
preme court will dismiss the suit {Post, p. 686.) 



11 Gates] SEPTEMBER TEBM, 1907. 



Railroad y. Blckley. 



FROM KNOX. 



Appeal in error from the Circuit CJonrt of Ejiox 
County.— John W. Orbbn^ Special Judge. 

Lindsay^ Yoxjnq & Smith and Joubolmon^ Wblckeb 
& Smith^ for Railroad. 

Shields, Gates & Motjntcastlb, for Bickley, McGlure 
&Go. 



Mb. Chief Justice Beabd delivered the opinion of the 
Court 

This is an action to recover from the Southern Rail- 
way Company the value of the contents of a trunk which 
the defendants in error claim was lost by Are while in 
the possession of that company as a common carrier. 

The record shows that one Armstrong was an employee 
of the defendants in error, traveling in their interest 
and carrying with him a number of trunks containing 
samples of merchandise for the purpose of exhibition 
to the trade. In his testimony Armstrong states that 
at Pennington Gap, in Virginia, on the line of the Louis- 
ville & Nashville Railroad, he checked the trunk in ques- 
tion to Cumberland Gap, a station of the road in this 

119 Tenn.— 34 



530 TENNESSEE REPORTS. [119 Tenn. 

Railroad y. Bickley. 

State; that he did not accompany the trunk, but drove 
through the country to Tazewell, a town on the line of 
the Southern Railway Company, about twelve or four- 
teen miles south of Cumberland Gap; that on his arrival 
at Tazewell he found the agent of the Southern Rail- 
way Company at his place of business, and asked him 
if he could not have this trunk brought over on the 
morning train of that company, and upon his saying he 
could he (Armstrong) delivered the check issued to him 
at Pennington Gap to this agent ; that the next morning 
he returned to the station, when the agent volunteered 
the statement that the trunk would be on the train th«i 
due, and that, relying on this being done, he (Armstrong) 
left Tazewell over the line of this railway for Knoxville, 
the agent agreeing that the trunk should be shipped to 
this latter point; that subsequently he was informed 
that some two weeks thereafter the depot at Cumber- 
land Gap was destroyed by fire, and the trunk, with its 
contents, being still there, was burned. 

He further states that the Louisville & Nashville and 
the Southern Railway had a common agent at Cumber- 
land Gap, and used at that point for the transaction of 
their business the same station or depot Upon these 
facts the question of law is : Was there a delivery of 
this trunk to the plaintiff in error, so as to make it liable 
for this loss as a common carrier? 

That delivery is essential to create the liability of a 
party or corporation sought to be held as common car- 
rier is beyond question. It is well settled, however, that 



11 Gates] SEPTEJMBER TERM, 1907. B31 

Railroad ▼. Blckley. 

this delivery can be as well constructive as actual, and 
many illustrations of a complete constructive delivery 
are found in the text-books and in the reports of many 
States. In the present case there was no actual delivery. 
Now, was there a constructive delivery, such as to make 
the Southern Railway liable for this loss? Even if it 
be true that this trunk was, at the time of the agree- 
ment miade by the agent at Tazewell to forward it to 
Knoxville, in the depot at Cumberland Gap (and there 
is no evidence in the record of that fact), yet we do not 
see how the mere delivery of that check and its accept- 
ance by the agent of the Southern Railway can be held 
as a constructive delivery to the latter road. Though 
it be, as was held by this court in L., etc., B. Co. v. 
Weaver, 9 Lea, 38, 42 Am. Rep., 654, that a check for 
baggage is, in legal effect, and answers the purpose of, a 
bill of lading, yet this check was issued by the Louis- 
ville & Nashville Railroad upon an undertaking to con- 
vey the trunk to Cumberland Gap. Wherever the trunk 
was at the time of the agreement in question, it was in 
the possession and under the control of that company. 
It may be that, upon the presentation of that check by 
the Southern Railway to the agent of the Louisville & 
Nashville Railway Company, it would have surrend- 
ered its possession. But it was not surrendered, nor 
does it appear affirmatively from this record that it 
would have been. Certainly the mere agreement be- 
tween Armstrong and the agent of the Southern Rail- 
way, without the consent of the Louisville & Nashville 



532 TENNESSEE REPORTS. [119 Tenn. 

Railroad y. Bickl^y. 

Railway Company, could not work a transmutation of 
possession. This was essential to the maintenance of 
the present action; for the authorities all agree that, 
until the entire and exclusive custody of goods or bag- 
gage has been given to the common carrier, no responsi- 
bility rests upon him in that character. Hutchinson 
on Carriers, section 94; 4 Elliott on Railroads, section 
1403 et seq. 

We do not deem it of any importance in the settle- 
ment of this question that these two railways used the 
same station at Cumberland Oap and had there an agent 
in common. The duties of this party to his several em- 
ployers were as distinct as if devolved upon two separ- 
ate persons, who discharged them at two different sta- 
tions or depots in that town. 

If it appeared that the Southern Railway had, by 
an established custom or otherwise, authorized such an 
agreement as was made in this case, then no doubt the 
carrier relation would have at once attached; but there 
is nothing to show that such authority was given to its 
agent, either expressly of by implication. If bound to 
make good the loss of this trunk under the conditions 
disclosed, then this railway would have be^i equally 
bound upon such an agreement made by this agent if 
the check had made it deliverable to Louisville or some 
other point on the Louisville & Nashville Railway, hun- 
dreds of miles distant from Tazewell. Mere distance 
could not affect in any degree this question of liability. 
It could hardlv be maintained that one who checked his 



11 Gates] SEPTEMBER TEEM, 1907. 533 

Railroad ▼. Blckley. 

trunk from the city of New York to Washington over 
one of the lines of the Pennsylvania System, and, with- 
out more, being at Bristol, Tennessee, delivered his 
check to the agent of the Southern Railway at that place, 
upon the agreement of the latter to see that the trunk 
was forwarded to Knoxville, Tennessee, where the owner 
was then bound, could hold that railway liable for its 
loss, where the failure occurred under the circumstances 
such as is shown in the present case. 

It seems to us that, should the plaintiff in error be 
held liable in this case, then if, instead of delivering the 
check to its agent in Tazewell, it had been given by 
Armstrong to the agent of the transfer company in 
Knoxville, who accepted it with a promise to see that 
the trunk was forwarded, and, failing to do so, it was 
lost or destroyed, that company would be equally liable. 
Yet no one would insist that, without any authority 
shown upon the part of the transfer agent to make such 
agreement, or any proof of the fact that the trunk had 
ever come into the actual possession of the transfer com- 
pany, it would be responsible for the loss. We are un- 
able to understand how the mere fact that the line of the 
Southern Railway extended from Tazewell to Cumber-' 
* land Qap can in any wise affect the question. 

We think the case falls within the authority of 
atetcvrt V. Oracey, 93 Tenn., 314, 27 S. W., 664. There, 
through its agent, the firm of Stewart, Ralph & Co. had 
purchased from a firm in the city of Olarksville a num- 



534 TENNESSEE REPORTS. [119 Tenn. 

Railroad y. Blckley. 

ber of hogsheads of tobacco. The defendants, Gracey 
& Bro., were common carriers in that city engaged in the 
transfer business. The agent of Stewart, Ralph & Co. 
delivered to Gracey & Rro. the warehouse receipts or 
coupons for this tobacco, and at the same time gave them 
a written order on the warehouseman for the same. 
There were unavoidable delays experienced by Gracey & 
Bro. in the removal of the tobacco, during which time 
several of the hogsheads were destroyed by fire, and the 
object of the suit was to hold them liable for the loss 
thereby sustained, upon two grounds: First, of n^li- 
gence; and, second, that as common carriers they were 
insurers against all losses except those occasioned by the 
act of God or the public enemy. In the course of the 
opinion, in disposing of the second ground, the court 
said: ^^It is insisted the order and coupons had been 
accepted by the carrier, and that by virtue of holding 
them they had commenced to move and had in fact moved 
a portion of the fifty-six hogsheads. . . . The 
argument is that these acts constituted a constructive 
deliT'ery, and the tobacco thereby passed under the con- 
trol and custody of the carrier for removal, and that 
the carrier^s liability at once attached. We are unable 
to concur in this contention. The contract of carriage ' 
involves a bailment, and ordinarily there must be an 
actual delivery of the goods to the carrier. A contract 
with a common carrier for the transportation of prop- 
erty being one of bailment, it is necessary, in order to 



11 Gates] SEPTEMBER TERM, 1907. 535 

Railroad y. Bickley. 

charge him for its loss, that it be delivered to and ac- 
cepted by him tot that purpose. But such acceptance 
may be actual or constructive. For instance^ if tiie 
property be deposited at a designated station, in accord- 
ance with a conventional arrangement between the par- 
ties in respect to the mode of delivery, or if it be de- 
posited with a third person who is authorized by the 
carrier to execute a bill of lading in the name of the 
carrier, then such mode of delivery is as complete as if 
the property had been actually deposited with the car- 
rier. . . . But in the case at bar the tobacco was 
not deposited in the custody of an agent of the shipper 
and constructively in the possession of the shipper him- 
self. The carrier did not execute a bill of lading or re- 
ceipt for the property, nor did he in any way acknowl- 
edge that the property was in his custody. The carrier 
in this place simply had an order from the shipper to 
enable him to get possession of the tobacco. If the ware- 
houseman had refused to recognize the order, and had 
converted the property to his own use, the carrier would 
not be liable simply for the reason that he had never 
secured possession of the goods." 

If it be true that with the warehouse receipts or 
coupons in their hands, and an order from the owner 
for a delivery of the tobacco, there was no constructive 
delivery, so as to impose on Qracey & Bro. the liability 
of a common carrier, then we think the principle an- 
nounced applies in this case, where an agent without any 
real or apparent authority, so far as we can see^ from 



536 TENNESSEE REPORTS. [119 Tenn. 

Railroad T. Blcklej. 

his principal^ accepts a check issued by another railroad 
for a trunk then at a point twelve or fourteen miles 
distant and in the custody of the railroad, and agrees 
to forward the trunk to his place of destination. That 
this agent may be responsible for his failure to do what 
he thus undertook is possibly true; but this is beside 
the question in controversy. 

The judgment of the court below is reversed; and, 
this having been delivered without the intervention of a 
jury, the suit is dismissed. 



11 Gates] SEPTBMBEE TEEM, 1907. 537 

Box Co. Y. Gregory. 



AoMB Box Company v. Basoom Gregory, by next friend^ 

and 
ACMB Box Company v. J. L. Gregory. 

{Knoxville. September Term, 1907.) 

1. KASTBB AND 8EBVANT. Safe place to work; aenrant 
aaaumea risk of a known dangerous place or hole. when. 

It is the duty of the master to furnish the servant with a safe 
place to work; but where the servant has full knowledge of 
the danger, and continues to work in the dangerous place, he 
assumes the risk, as where the plaintiff knowing the exposed 
condition of a hole in the floor, continues to work there, he 
assumes the risk. {Post, p. 541.) 

Cases cited and approved: Railroad v. Smith, 9 Lea, 685; Brew- 
er T. Coal Co., 97 Tenn., 615; Brown v. Electric Co., 101 Tenn., 
262; Corbett v. Smith, 101 Tenn., 368; Iron Co. v. Pace, 101 
Tenn., 476, 486-489; Ferguson v. Cotton Mills, 106 Tenn., 286. 

2. SAME. Same. Master's duty to inspect premises; no pre» 
sumption of negligence from failure for a short time. 

It Is the duty of the master to exercise reasonable care to in- 
spect the premises and the place where his servants are 
engaged, but no presumption of negligence will arise from his 
failure to Inspect during the short period of four and one-half 
hours after a defect suddenly appeared by the patch, covering a 
hole in the floor, being torn off, and leaving the hole open and 
unprotected, when no Indication of anything wrong was com. 
municated to him. {Post, pp. 541, 542.) 

8. NBW TBIAL8. Overruled motion for a ^new trial may b» 
embraced in bUl of exceptions for review on appeal, when. 
A motion for a new trial overruled and refused may be brought 
to the supreme court in the bill of exceptions, where a written 



538 TENNESSEE REPORTS. [119 Tenn. 

Box Co. Y. Gregory. 

motion was filed stating the grounds on which a new trial was 
sought, where it appears on the minute book that such a motion 
was made, and what disposition was made of it, with a refer- 
ence made to the written motion so filed, and notation of the 
filing entered on the rule docket {PosU pp. 542-647.) 

Acts cited and construed: Acts 1875, ch. 106. 

Cases cited and distinguished: Railroad v. Egerton, 98 Tenn^ 
641, 642, 643; Railroad y. Johnson, 114 Tenn., 682. 

4 PBREMPTOBY IK8TBU0TI0NS. For verdict for defendant 
where plaintiff as employee assumed a known risk. 
Peremptory instructicms for a verdict in favor of the defendant 
should be given, where the plaintiff as employee with full 
knowledge of the danger continues to work in the dangerous 
place; and the defendant as employer is guilty of no negligence. 
(Post, pp. 539-542.) 

5. SAMB. Same. Dismissal of suit upon reversal for failure to 
give. 
Where a judgment in favor of the plaintiff is reversed upon the 
ground that the circuit judge erroneously refused to give 
peremptory instructions for a verdict in favor of the defendant, 
the supreme court will dismiss the suit (Post, pp. 689-642, 
647.) 



FROM HAMILTON. 



Appeal in error from the Circuit Court of Hamilton 
County.— M. M. Allison, Judge. 

Smith & Cabswell and James H. Andebson, for Box 
Company. 

Shepherd & Fbiebson, for Bascom. 



11 Gates] SEPTEMBER TERM, 1907. 539 

Box Co. V. Gregory. 

Mb. JusnCB Neil delivered the opinion of the Court. 

The first suit was brought by Bascom Gregory, a 
minor, to recover for i>er8onal injuries allied to have 
been inflicted upon him by the negligence of the plaintiff 
in error, and the second was brought by his father to 
recover for loss of services of the son on account of the 
same injury. Both cases were tried at the same time, 
resulting in a verdict of |2,250 in favor of Bascom Gre- 
gory and f3,000 in favor of J. L. Gregory. Prom these 
judgments the plaintiff in error, after his motion for a 
new trial was overruled, appealed to this court, and has 
here assigned errors. 

The errors assigned are : First, there is no evidence to 
sustain the verdict ; second, the court erred in failing to 
sustain a motion for peremptory instructions, offered 
by the plaintiff in error, at the close of the 
testimony of the plaintiff below, and also at the close 
of all the evidence; and, thirdly, that the verdict was so 
excessive as to indicate passion, prejudice, or corruption 
on the part of the jury. 

We shall consider the first and second assignments to- 
gether. 

The defendant in error Bascom Gr^ory was a boy 
seventeen years old, and appears from his testimony 
to be a young man of average intelligence. He was em- 
ployed by the plaintiff in error in the fall of 1905 to saw 
scraps of lumber into certain forms according to direc- 
tions. The saw on which he was working was located 
on a table in front of him. Near by, to his rear, there 



540 TENNESSEE REPORTS. [119 Tenn. 

Box Ca V. Gregory. 

was another saw of the same kind, woriced by another 
boy. The two tables were distant from four to eight 
feet, as Tariously estimated by the witnesses. At the 
edge of the saw table just back of the defendant in error, 
there was a hole about sixteen inches square, which had 
been in the floor for many years, but up to the morning 
of the accident it was covered with pieces of plank 
nailed over it. Over this patch in the floor there was 
a box which was used for scraps falling from the 
saw of the boy just behind him. This box would get full 
and have to be emptied about every fifteen minutes, and 
it would require about ten minutes to take it out and 
empty it and get back with it. During this interval 
the patch in the floor would be exposed. The defendant 
in error had been in the employ of the company about 
a week, and his work went along without incident until 
the morning of the accident On that morning it was 
discovered that the patch had come off, or been torn off 
—at least, was off— leaving the hole exposed, and noth- 
ing to protect it except the box, when the latter was 
resting over it. This situation was disclosed at 7 o'clock 
in the morning, and the defendant in error was hurt 
about 11 :30. He was fully aware of the existence of the 
hole, and of the fact that it was dangerous when ex- 
posed, and that it was exposed, and would be exposed, 
say twice in every half hour, during the day. It was 
a part of the defendant in error's duty to go some dis- 
tance from the saw that he was working on, and fill his 
arms with scraps of lumber, and go back to his saw, and 



11 Gates] SEPTEMBEB TEEM, 1907. 541 

Box Co. Y. Gregory. 

place them on the table for use in sawing. On one sneh 
occasion, during the day, about 11 :30 o'clock, he went 
out to get the scraps, and came back with his arms full, 
and placed them on the table at a conyenient distance to 
pick them up as he would need them in sawing. As he 
placed the armful of scraps on the table he stepped back, 
and, for the moment forgetting the existence of the hole, 
stepped in it, and this threw his right arm oyer the saw 
on the table back of him and lacerated it so much that it 
had to be amputated. There is no testimony that the 
defendant in error, or any one else, informed the master 
that the patch had been torn off, and the hole exposed; 
nor is there testimony of the exposure of this hole. 

The foregoing are the undisputed facts. The question 
is whether they make out a case of liability against the 
master. 

We think they do not. It is the duty of the master, of 
course, to furnish the servant with a safe place to work; 
but where the servant has full knowledge of the danger, 
and continues to work in the dangerous place, he is 
held to assume the risk. Iron Co. v. Pace, 101 Tenn., 
476, 486—489, 48 S. W., 232; Ferguson v. Phoenix Cot- 
ton Mills, 106 Tenn., 236, 61 S. W., 53; Broum v. Eleo- 
trio Co., 101 Tenn., 252, 47 S. W., 415, 70 Am. St. Rep., 
666; Corbett v. Smith d Co., 101 Tenn., 368, 47 S. W., 
694; Brevier v. Tennessee, etc., Coal Co., 97 Tenn., 615, 
37 S. W., 549; Railroad v. Smith, 9 Lea, 685. In the 
present case, if we assume that the master was in fault 
in not discovering the existence of the hole in question 



542 TENNESSEE EEPOETS. [119 Tenn. 

Box Co. T. Gregory. 

in SO short a tune, still the servant would be precluded 
from recovery, because the defect in the floor was per- 
fectly obvious, and the risk or danger of it was also per- 
fectly apparent to the servant But we do not think that 
the facts show any negligence on the part of the master, 
since the defect was one that suddenly appeared, and it 
is not shown that the master had any knowledge of it. 
It iSjp of course, the duty of the master to exercise rea- 
sonable care to inspect the premises and the place where 
his servants are engaged. But we do not tiiink any pre- 
sumption of negligence could arise from his failure to 
inspect during the 4^ hours covering the period of 
the existence of the hole unprotected by the patch, when 
no indication of anything wrong was communicted to 
him by those under whose immediate observation the 
defect was ; that is, the defendant in error and his fellow 
servants. 

On the grounds stated, we think the peremptory in- 
struction should have been given. 

However, it is insisted in behalf of the defendant in 
error that the plaintiff in error cannot make the ques- 
tion above disposed of in this court, because his mo- 
tion for a new trial in the court below was not entered 
at large upon the minutes of the court, but only in the 
bill of exceptions. In support of the proposition we are 
referred to Railroad v. Egerton, 98 Tenn., 541, 41 S. W., 
1035, and Railroad v. Johnson, 114 Tenn^j 632, 88 S. W.^ 
169. 

Before referring to these cases, it is proper that we 



11 Gates] SEPTEIMBER TEEM, 1907. 543 

Box Co. V. Gregory. 

should state the exact facts concerning the entries in the 
present cases. In each case, the following entry appears 
npon the minutes : 

"Defendant's motion for a new trial, heretofore filed in 
writing in this case, was heard by the court and over- 
ruled, to which action of the court the defendant then 
and there excepted, and prayed an appeal to the next 
term of the supreme court to be held at Knoxville, which 
was granted to defendant on giving bond and security 
for costs and damages incident to the appeal.'^ 

In each case there is an entry on the rule docket 
showing that a motion for a new trial had been filed, 
and another and later entry on the same docket show- 
ing that the motion had been overruled. In the bill of, 
exceptions the motion for a new trial was copied in ew- 
tenso. It likewise shows that it had been marked 
"Filed" by the clerk on the same day, as shown by the 
entry on the rule docket. 

There is no order of the court below, contained in the 
present record, showing that that court has a rule re- 
quiring motions for new trial to be presented in writ- 
ing, showing the grounds of the motion; but, in the view 
we take of the statute below referred to, this is imma- 
terial. 

As authority for incorporating the motion for a new 
trial in the bill of exceptions, we are referred by coun- 
sel for plaintiff in error to chapter 106, p. 189, of the 
Acts of 1875, which (omitting the enacting clause) 
reads as follows: 



544 TENNESSEE BEPOBTS. [119 Tenn. 

Box Co. ▼• Gregory. 

t^That where a motion for a new trial shall be granted 
or refused, eithar party may except to the dedsion of 
the court and may reduce to icriting the reasons offered 
for said new trial, together i/oith the substance of the 
evidence in the case, and also the decision of the court 
on said motion; and it shall he the duty of the judge, be- 
fore whom such motion is made, to aUow and sign the 
same; and such hill of exceptions shall he a part of the 
record in the case, and it shall be lawful for the appellant 
in such case to haye assigned for aror that the judge in 
the court below improperly granted or refused a new 
trial therein, and the supreme court shall have power to 
grant new trials, or to correct any errors of the circuit 
court, in granting or refusing the same.'' 

The italics are not in the act, but we have made the 
italics for the purpose of more convenient reference. 

It is insisted for plaintiff in aror that the language 
italicized, taken in connection with the other language 
appearing in the act, requires that the grounds for a new 
trial shall be incorporated in the bill of exceptions. 

It is insisted that this act applies, not only to bills of 
exceptions made up in cases where a new trial has been 
granted and the parly against whom it is granted de- 
sires to make a record, in order that the propriety of the 
judge's action may be subsequently tested in the su- 
preme court, after there shall liaye been a judgment in 
the court below against which that court refused to 
grant a new trial, but that it applies to all moticms for 
new trial ; that is to say, it is insisted for the plaintiff in 



11 Gates] SEPTEMBER TERM, 1907. 545 

Box Co. V. Gregory. 

error that, when a motion for a new trial is either grant- 
ed or refused, the party who considers himself aggrieved 
by the action of the court, either granting or refusing 
the motion, has the right to take a bill of exceptions in 
the* manner provided therein, and to incorporate in such 
bill of exceptions the grounds of the motioxi; that this 
applies just as well in cases where the judge of a lower 
court refuses to grant a new trial, and an appeal is 
taken from that action to the supreme court, as to cases 
where he grants the new trial against a verdict which 
the winning party on that trial seeks to maintain. 

It is insisted that this statute was not referred to or 
considered by the court in the case of Railroad v. Eger- 
ton, supra. In that case the court said: 

"The defendant appealed in error; its motion for a 
new trial and in arrest of judgment being overruled, as 
it avers and as appears in the bill of exceptions. It 
does not appear, however, on the minutes of the court 
that such motions were made, though the bill of excep- 
tions recites the fact that they were made. We can- 
not, therefore, hold that any such motions were made 
at all. If made, it was necessary that they should have 
been entered on the minutes of the court, and even 
though they had been in fact made, and the bill of ex- 
ceptions presented to us be treated as showing that they 
were made, it is still indispensable that they should ap- 
pear, with the action of the court thereon, on the min- 
utes. It is not the office of a bill of exceptions to pre- 

119 Tenn. — 35 



546 TENNESSEE REPOUTS. [119 Tenn. 

Box Co. V. Gregory. 

serve minute entries, and take the place of the minutes 
of the court." 98 Tenn., 542, 543, 41 S, W., 1035. 

It does not appear in the case from which we have 
just quoted that there was any entry at all on the min- 
utes. In the cases before the court there were entries on 
the minute book, showing that a motion for a new trial 
had been made and overruled, and the complete motion 
was filed in the office of the clerk, and notation made on 
the rule docket. 

We have here a clear reference in the minutes to a 
designated paper where the exact language referr(.»d to 
therein could be found. We think this was fairly within 
the rule laid down in the Egerton Case. 

Moreover, we are of the opinion that the statute above 
quoted not only requires that a motion for a new trial 
shall be filed, stating*the grounds on which it is sought 
to question the action of the court below, but that this 
motion may be brought up to this court in the bill of 
exceptions. It should, however, appear upon the minute 
book that such a motion has been made, and the disposi- 
tion of it, and there should be at least a reference to 
the motion on file, such as was made in the cases now 
before the court. The better practice would be, also, as 
laid down iu Railroad v. Egerton, to set forth the whole 
motion on the minutes of the court. 

The case of Railroad v. Johnson is not at all adverse 
to the present view. In that case, indeed, the court, in 
an opinion by Mr. Justice Shields, enforces by reason 
and authority the proposition that this court, in cases 



11 Gates] SEPTEMBER TERM, 1907. 547 

Box Co. V. Gregory. 

coming from the lower courts of law, can act only upon 
such matters as were passed on by such lower courts, 
and that there should be a motion for a new trial, point- 
ing out specifically the objections to the action of the 
lower court, and that the case should be tried here upon 
the propriety of the ruling of that court in respect of the 
matters so complained of. In other words, the opinion 
in the case of Railroad v. Johnson arrives at the same 
proposition in substance by a course of reasoning and 
the use of general authorities which we here hold is 
likewise acquired by the act of 1875. The opinion in 
that case refers merely in passing to Railroad v. Egerton 
on the point that the motion must be reduced to writing 
and entered upon the minutes of the court. This remark 
is merely incidental in the opinion referred to, and the 
court did not have in mind the statute above copied. 
We do not think that either of the cases cited was in- 
tended to establish a rule different from that laid down 
in the statute, or can be treated as qualifying that rule. 

On the grounds stated above, we are of the opinion 
that the judgment of the court below should be re- 
versed, and the suit dismissed. 



548 TENNESSEE REPORTS. [119 Tenn. 



Banking Co. V. Hall. 



Elgin Crry Backing Company v. Jeff Hall et al 

(Knoxville, September Term, 1907.) 

1. BILLS AKD VOTES. Procured by fraud are not enforceable 
as between the ori^nal parties. 
Where the agent of the owner of a horse in selling him repre- 
sented to five of the buyers that three other named persons 
with whom he had secretly arranged to pay two of them a 
consideration and to release another from the payment of the 
purchase price, for the use of their names as buyers, were to 
become equal partners in the purchase of the horse, the notes 
executed by the individuals, thus imposed upon, for the price 
of the horse were procured by fraud, and are not enforce- 
able as between the original parties. (Post, pp, 651-557, 566.) 

3. SAMB. Indorsement "without recourse" does not impair 
their neg tiability. 
The ihdorsement of a negotiable instrument "without recourse" 
is not sufficient to put the purchaser upon notice, and it does 
not impair the negotiable character of the instrument (Post, pp, 
558, 559.) 

Acts cited and construed: Acts 1899, ch. 94', sec 38. 

8. SAME. . ladorsement in blank is not nullified by an indorse 
ment of guaranty following^ it. , 
The blank indorsement of a negotiable instrument is not nulli- 
fied by another indorsement following after it and. guaranteeing 
the payment thereof with a greater rate of interest, and the 
costs of collection, and waiving demand of payment and notice 
of nonpayment. Whether such indorsement of guaranty with- 
out the prior blank indorsement would destroy the negotiability 
of the instrument is reserved as unnecessary to be determined. 
{Post, pp. 559, 560.) . • 



i 



11 Gates] SEPTEMBER TERM, 1907. 549 

Banking Co. v. Hall. 

Cases cited and approved: Banking Co. v. Zelch» 67 Mlnii., 
487; Cover v. Myers, 75 Md., 406; Trust Co. v. Railroad, 76 
Fed., 433. 

4. 8AMB. Bemedy agrainst guarantor in an absolute guaranty. 
Where the guaranty of a note is absolute no demand or exhaus- 
tion of the maker is required, nor is any notice of acceptance 
or default required. (Post, pp. 562, 663.) 

6. SAME. Same. Instance of an absolute guaranty. 
Whether the guaranty of a note stipulates that the maker will 
pay, or whether it stipulates that the guarantor will pay, the 
underaking is absolute whether the maker is solvent or not, 
and the guarantor must pay the amount or see that it is 
paid. It is not the xase of a guaranty of the solvency or col- 
lectibility, which requires previous demand and suit. (Post, p. 
663.) 

Case cited and approved: Klein v. Kern, 94 Tenn., 34, 37. . 

6. SAME. Bank giving indorser credit on his account for pro- 
ceeds of note discounted is not a purchaser for value. 

Where a bank simply discounts a note and credits the amount 
thereof on the indorser's account, without paying to him any 
value for it, it does not prima facie become- a hona fide pur- 
chase for value, since the proceeds of the discount' may be 
credited to the bank by making a change of entry on its 
books. (Post, p. 564.) 

Case cited and approved: Warman v. Bank; 185 111., 60. 

7. SAMB. Purcbasar is holder for value and in due course of 
trade, when. 

A purchaser of commercial paper is a holder for value and in due 
course of trade, when he has given for the note his money, 
goods, or credit, at the time of receiving it, or has on ac- 
count of it sustained some loss or incurred some liability. 
(Post, pp. 560-562, 566.) 



550 TEIJ'NESSEE REPORTS. [119 Tenn. 

Banking Ck>. ▼. Hall. 

Acts cited and construed: Acts 1899, ch. 94; sees. 26, 26, 62, 65, 
^66, 67« and 69. 

Cases cited and approved: N^chol v. Bate, 10 Tergr., 429; 
Kimbro t. Lytle, 10 Terg., 417; Bank y. Johnston, 106 Tenn., 
62L 

8. SAMB. Bank purchasing note and obtaining credit for seller 
in another solvent bank is holder for value. 

A bank discounting a note and obtaining credit in &yor of the 
indorser in another solvent bank for the amount of the dis- 
counted paper is a holder for value. {Post, pp. 664, 666.) 

9. 8AMB. Same. Testimony must show in what way credit 
was given. 

Testimony that the purchaser paid for the note the full amount 
thereof by giving the seller credit for the amount at named 
bank, without showing how the credit was given, or that it 
was ever used, does not show the purchases to be a holder for 
value, since the court cannot determine whether or not -the 
credit was real and substantial. (Post, pp. 666, 666.) 

10. 8AMB. Burden rests on purchaser to show that he was a 
holder for value, when. 

In an action on a note by the purchaser thereof against the 
mailers, defended on the grounds that it was procured by the 
fraud of the payee, as shown in the first headnote, and that 
the purchaser was not an Innocent purchaser for value, the 
burden of proof rests upon the complainant to show that he 
was a holder for value. (Post, p. 566.) 



FROM BRADLEY. 



Appeal from the Chancery Court of Bradley County.- 
T. M. MoCoNNELL, Chancellor. 

Whbbleb & Trimble^ for complainant. 



11 Gates] SEPTEMBER TERM, 1907. 551 



Baiiking Co. ▼. Hall. 



Maykield & Mayfield, for defendants. 



Mr. JrsTiCE McAlister delivered the opinion of the 
court. 

This bill was filed by the Elgin City Banking Com- 
pany, a corporation chartered under the laws of the 
State of Illinois, and having its^i^tt^ and principal place 
of business at Elgin, in said State, against the defend- 
ants, who are all residents of Bradley county, Ten- 
nessee, for the collection of two promissory notes, to- 
gether with the accrued interest Complainant claims to 
be an innocent holder of said notes, and purchased them 
before maturity, in due course of trade, without notice 
of any outstanding equities against them. A copy of 
one of said notes, together with the indorsements there- 
on, is in the words and figures following, to wit: 

"400.00 Cleveland, Tenn., Oct. 1st, 1903. 

"On or before the first day of September, 1905, for 
value, received, we jointly and severally promise to pay 
to the order of Dunham, Fletcher & Coleman, of Wayne, 
111., four hundred dollars (f 400.00), payable at the 
Cleveland National Bank, with interest at five per cent, 
per annum, payable anually from date, until paid. 

"Jeff Hall. 

"C. T. Carroll, Jr. 

"L. L. Callaway. 

"L. P. Sullivan. 

"T. J. McKamy. 

"Edward H. Thurston.^' 



552 TENNESSEE REPORTS. [119 Tenn. 

Banking Co. v. Hall. 

"Pay to the order of W. S., J. B. & B. Dunham, 
without recourse to us. 

"Dunham, Fletcher & Golem an.'' 

"W. S., J. B. & B. Dunham." 

"Fop value received, we hereby guarantee,' the pay- 
ment of the within note at maturity, or at any time 
thereafter, with interest at five and one-half per cent 
per annum until paid, and we agree to pay all the costs 
and expenses paid or incurred in collecting the same, 
hereby waiving demand of payment and notice of non- 
payment. 

"W. S., J. B. & B. Dunham." 

Defendants answered the bill, in which they admitted 
the execution of the notes, but denied that complainant , 
is an innocent purchaser of said notes, for value, and in 
due course of trade. It is averred that said notes were 
procured by fraud and misrepresentation on the part 
of Dunham, Fletcher & Coleman, the payees; and as a 
further defense it is averred that the consideration for 
said notes has wholly failed. 

The more specific averments of the answer are that 
the notes in suit represented in part the purchase price 
(|1,600) of a certain horse; that at the time of said pur- 
chase the payees, Dunham, Fletcher & Coleman, deliver- 
ed to respondents a written statement or guaranty of 
the soundness of said animal and that he possessed all 
the qualities represented by the seller, but on delivery of 
the horse it was soon ascertained that he was a stump 



11 Catesl SEPTEMBER TERM, 1907. 653 

Banking Co. v. Hall. 

sucker and did not in any respect possess the quali- 
ties guaranteed by said seller. When said facts were 
communicated to the seller, said firm agreed to receive 
back the horse, and agreed with two of the purchasers 
to ship another horse to Gleyeland in place of the first, 
which was accordingly done. It is then averred that the 
second horse was of a notoriously diseased breed of 
horses, and was not only thus diseased, but was not up 
in other respects and qualities to the warranty of the 
seller, all of which facts were fraudulently concealed 
from the purchasers. It is then averred that the second 
horse so shipped to Cleveland died within about two 
months after his arrival, as a result of his diseased con- 
dition at the time he was shipped; and respondents aver 
that said sellers, as horse dealers, must have known of 
the diseased condition of this horse, but fraudulently 
concealed the same from respondents. 

It is further averred that the agent of the payee of 
said notes, at the time the defendants agreed to pur- 
chase the horse, made secret and fraudulent contracts 
with certain of said purchasers, in whose judgment as* 
horsemen defendants had confidence, whereby said par- 
ties were induced to represent themselves as willing to 
enter into said purchase as equal partners, and pre- 
tended to join with defendants as purchasers, and also 
pretended to pay or become liable for said sum of (200 
each for a one-eighth interest in said horse, for the fraud- 
ulent purpose of inducing defendants to enter into said 
contract; whereas, Jn- fact, neither of the parties to said 



554 TENNESSEE REPORTS. [119 Tenn. 

Banking Co. y. Hall. 

secret contract contributed said sum of 1200, but by the 
agreement with said seller were either paid large sums 
in cash to wit, from f 50 to flOO, or were giTen a one- 
eighth interest, free of charge, to have them passed as 
equal partners or purchasers, and induce defendants to 
enter into said contract and become liable for said pur- 
chase money. 

It is averred that the purchase by each of the said 
eight alleged purchasers was a material part of the 
consideration for said purchase by all the other pur- 
chasers. Defendants, therefore, aver that, because of 
the fraud, misrepresentations, and concealments on the 
part of the payees in procuring said contract and notes, 
and because of said failure of consideration they are not 
liable to complainants for the amount oi said notes or 
other sum. 

It appears that the notes in question were indorsed 
by the payees, Dunham, Fletcher & Coleman, to an- 
other firm, of which W. S. Dunham was a member, and 
by that firm transferred before maturity to complainant 
Ibank. It is claimed by the complainant that it had no 
notice of any equities existing against the notes. The 
complainant bank claims to have purchased the notes by 
placing the amount paid for them to the credit of W. 
S., J. B. & B, Dunham (the second indorsers, for whom 
the notes were discounted) in the First National Bank 
of Elgin, 111., a different bank from complainant^ which 
is the Elgin City Banking Company, as already stated. 

Proof was taken and on the hearing the chancellor 



11 Gates] SEPTEMBER TERM, 1907. 555 

Banking Co. ▼. Hall. 

Tv-as of the opinion that the c<HnpIainant did not give 
yalne for the notes; he holding that the defenses alleged 
were good against the original payee and therefore good 
also against the complainant. The chancellor was of 
opinion that the complainant was not an innocent 
holder of the paper and that the defense set up in the 
answer had been established by the proof, and he ac- 
cordingly dismissed the complainant's bill. The com- 
plainant appealed, and has assigned errors. 

The first inquiry naturally arising is whether there 
was fraud in the original inception of this contract, for 
which the notes in question were executed in part ful- 
fillment. . 

It is shown on the record that one Campbell, the 
agent of the payees, Dunham, Fletcher & Coleman, 
brought the first horse in question to Cleveland, and, 
having failed to sell him, proi>OBed to six of the defend- 
ants to purchase the horse for |1,600, as equal partners. 
It is shown by the proof that said agent stated to the 
defendant E, H. Thurston that several others would join 
in the purchase if Thurston would become interested, 
and proposed that Thurston should hold himself out as 
a purchaser and aflfect to pay said sum of |200 with the 
others, but he should pay only |100, and the remaining 
flOO would be repaid to him; and it is shown that 
Thurston, under this secret contract, did thereafter pre- 
tend to join with the others as an equal partner in said 
purchase. It is also shown that said seller approached 
one M. L. Beard, of Cleveland, an old and experienced 



556 TENNESSEE REPORTS. [119 Tenn. 

Banking Co. v. Hall. 

dealer in horses, and on whose judgment the other pur- 
chasers relied, and proposed that said Beard should also 
become a colorable purchaser, and should receive a one- 
eighth interest in said horse gratis if he would profess 
to join in said purchase; and under this agreement, 
Beard did .thereafter pretend to be a bona fide pur- 
chaser, and permitted the seller to so represent him. 
The seller not only represented Beard as one of the pur- 
chasers, but some of the other purchasers were referred 
to him for his judgment as to the merits of the horse. 

It is also shown that said agent agreed with J. T. 
Ilall, another of said purchasers, to pay said Hall the 
sum of f50 for his services in inducing the others to 
join in said purchase. It is shown that none of the other 
purchasers knew or suspected these secret and fraudu- 
lent contracts had been made, but supposed that all the 
others were entering into the purchase on equal terms 
of partnership. It was represented to the five pur- 
chasers who received no secret consideration that seven 
others had agreed to join, and that it was only neces- 
sary that he agree to join to complete the purchase. It 
is further shown that when the eight purchasers met 
with said seller to complete the purchase and sjgn the 
notes for the purchase money, Thurston and Hall, at 
the request of the seller, signed the notes with the 
others, and the seller then secretly paid to them in cash 
the sums of f 100 and f 50 respectively, according to their 
secret arrangement. The seller also desired said Beard 
to sign said note and receive f 200 in cash ; but Beard ob- 



11 Gates] SEPTEMBER TEBM, 1907. 557 

Banking Co. t. Hall. 

jected to this, and it was thereupon announced to the 
others that Beard was paying his part of the purchase 
money to said seller in cash, but in fact nothing was 
paid by him. It is shown that one of said purchasers, 
G. W. Day, paid the seller the sum of |200 in cash, and 
this, with the f200 alleged to have been. paid by said 
Beard, left a balance of f 1,200, and for this sum the six 
defendants executed three notes, each for |400, due, re- 
spectively, on or before September 1, 1905, 1906, and 
1907, with interest at 5 per cent, payable annually. It 
is also shown by the proof that, while the agent made 
many representations and warranties as to the sound- 
ness and fine breeding qualities of the .animal, he care- 
fillly kept the horse in a locked box stall before the sale, 
where he could not be seen, except when taken out by 
the seller for inspection ; but within a few days after the 
purchase it was discovered that the animal was un- 
sound. When the seller was notified of this, he took 
back the horse and sent another in exchange. This new 
contract was n^otiated by Thurston and Hall, two of 
the alleged purchasers, who had been secretly paid to 
enter into the original contract. The second horse, as 
already seen, died about two months after he was re- 
ceived. 

We think, upon the facts shown in the evidence, that 
this contract and these notes were not enforceable 
against the original makers, on account of the fraud and 
misrepresentation practiced by the agent of the payees, 
Dunham, Fletcher & Coleman. 



558 TENNESSEE REPORTS. [119 Tenn. 

Banking Co. ▼. Hall. 

The question remains whether the complainants were 
innocent purchasers of said note for yalue^ before ma- 
turity, in due course of trade, without notice of any of 
the infirmities in said notes. 

As already seen, said notes were first indorsed "with- 
out recourse'* by Dunham, Fletcher & Coleman, the 
payees, to W-. S., J. B. & B. Dunham, and said notes 
were then delivered to complainant bank by said W. S., 
J. B. & B. Dunham under a written guaranty on the 
back of the notes, by which said firm guaranteed the 
payment of said note with interest at five and one-half 
per cent, per annum, together with all the costs and 
expenses of collection, and also waived demand and no- 
tice of nonpayment. 

It is suggested that the indorsement "without re- 
course" was suflBcient to put the purchaser upon notice, 
and destroyed the negotiability of the instrument; but 
we think it is well settled that an indorsement without 
recourse is not sufficient to put the purchaser upon no- 
tice. 2 Randolph, Commercial Paper, section 1008; 7 
Cyc, 954, and numerous cases cited. 

Moreover, the matter is set at rest by our negotiable 
instrument law (Acts 1899, p. 148, c. 94 section 38), 
wherein it is provided that "such an indorsement doen 
not impair the negotiable character of the instrument." 

Again, it is insisted that complainant bank holds an- 
other indorsement or guaranty by which the guarantors 
agree to guarantee payment of the note at a diflferent 
and higher rate of interest than the note bears, and 



11 Gates] SEPTEMBER TEBM, 1907. 559 

Banking Co. v. Hall. 

also guaraniee payment of all expenses of collection, 
whereas the notes themselves contained no such pro- 
vision. 

It has been observed that the notes bear interest at 
five per cent., while the guarantors agreed to pay in- 
terest at five and one-half per cent. It is argued that 
this is a new, independent, and different contract, and 
not merely a transfer of the notes. It is conceded that 
many of the authorities hold that a mere guaranty of 
a note will constitute the purchaser an indorsee, with- 
in the rule protecting an innocent holder; but it is in- 
sisted that this rule cannot apply to a guaranty chang- 
ing the rate of interest and also agreeing to pay ex- 
penses of collection. It is argued that, if this can be 
done without destroying the negotiability of the paper, 
then each indorsee can, of course, change the rate of 
iq|er^st or the amount of the note, and each be liable 
for a different amount. 

It is unnecessary to decide this question, since it ap- 
pears that the notes were indorsed in blank by W. S., 
J. B. & B. Dunham, and the guaranty did not, of course 
nullify their prior blank indorsement. 

In Elgin City Banling Co. v. Zelch^ 57 Minn., 487, 59 
N. W., 544, the indorsements were: 

"Pay Elgin City Banking Co. D. Dunham." 

"Payment guaranteed. D. Dunham." 

The court said: 

"Whether these indorsements be construed as consti- 
tuting a single contract, or two separate and distinct 



560 TENNESSEE REPORTS* [119 Tenn. 

Banking Co. v. Hall. 

contracts, we are clear that they constitute indorse- 
ments in the commercial sense, and that the transferee 
is an indorsee, and entitled to protection as such under 
the law merchant. The fact that Dunham enlarged his 
responsibility beyond that of an indorser by guarantee- 
ing payment did not change or aflfect the character of 
his indorsement." 

In Cover v. Myers, 75 Md., 406, 23 Atl., 850, 32 Am. 
St. Rep., 394, it is held that a guaranty added to an in- 
dorsement is not notice of defenses. Louisville Trust 
Co. V. L., N. A. & C. R. Co., 75 Fed., 433, ^22 C. C. 
A., 378. 

The determinative question presented on the record 
is whether the complainant bank is a holder for value. 
Our negotiable instrument law (section 25) provides: 

"Value is any consideration sufficient to support a 
simple contract. An antecedent or pre-existing debt con- 
stitutes value and is deemed such whether the instru- 
ment is payable on demand, or at a future time." 

"Sec. 26. Where value has at any time been given for 
the instrument, the holder is deemed a holder for value 
in respect to all parties who became such prior to that 
time." 

"Sec. 52. A holder in due course is a holder who has 
taken the instrument under the following conditions: . 

"(I) That it is complete and regular upon its face. 

"(2) That he became the holder of it before it was 
overdue, and without notice that it had been previously 
dishonored, if such was the fact. 



11 Gates] SEPTEMBER TERM, 1907. 561 

Banking Co. r. Hall. 

"(3) That he took it in good faith and for value. 

"(4) That at the time it was negotiated to him he 
had no notice of any infirmity in the instrument, or de- 
fect in the title of the person negotiating it*^ 

"Sec. 55. The title of a person who n^otiates an in- 
strument is defective within the meaning of this act, 
when he obtained the instrument, or any signature 
thereto, by fraud, duress or force and fear, or other un- 
lawful means, or for an illegal consideration, or when 
he negotiates it in breach of faith, or under such cir- 
cumstances as amount to a fraud. 

"Sec. 56. To constitute notice of an infirmity in the 
instrument, or defect in the title of the person negotia^ 
ing the same, the person to whom it is negotiated must 
have had actual knowledge of the infirmity or defect, or 
knowledge of such facts that his action in taking the 
instrument amounted to bad faith. 

"Sec. 57. A holder in due course holds the instrument 
free from any defect of title of prior parties, and free 
from defenses, available to prior parties among them- 
selves, and may enforce payment of the instrument for 
the full amount thereof against all parties liable 
thereon." 

"Sec. 59. Every holder is deemed prima facie to be a 
holder in due course, but when it is shown that the 
title of any person who has negotiated the instrument 
was defective, the burden is on the holder to prove that 

119 Tenn. — ^36 



562 TENNESSEE REPORTS. [119 Tenn. 

Banking Ck>. yT Hall. 

he, or some person, under whom he claims acquired the 
title as a holder in due course." 

While we find some facts and circumstances in the 
record tending to show that complainants were put on 
inquiry as to defenses against this note, we cannot say 
that complainant "had actual knowledge of the in- 
firmity or defect or knowledge of such facts that its ac- 
tion in taking the instrument amounted to bad faith." 

It is matter for observation that at the time of pur- 
chasing this paper the officials of the complainant bank 
made no inquiry in respect of the makers or as to the 
consideration of the notes, although it is admitted they 
knew nothing as to the commercial standing or sol- 
vency of the makers. 

Again, it appears that in enforcing the collection of 
the notes complainant has ignored the guarantors and 
is only suing the original makers. This is worthy of 
comment, since the guaranty was for the payment of 
all expenses of collection and additional interest. It 
appears the guarantors are solvent and reside within 
seven miles of complainant's place of business, and yet, 
passing them, complainant sent this paper to Cleveland, 
Tennessee, for collection, thereby seeking a lower rate 
of interest and incurring attorney's fees in the prosecu- 
tion of the suit. There was no obstacle in the way of 
a primary suit against the guarantors on this form of 
guaranty. It is well settled in Tennessee that, when the 
guaranty is absolute, no demand or exhaustion of the 
maker is required; nor is any notice required of the 



11 Gates] SEPTEMBER TERM, 1907. 563 

Banking Co. y. Hall. 

acceptance or default. It does not matter whether the 
guaranty stipulates that the maker will pay, or that 
the guarantor will pay, nor whether the maker is solvent 
or not. In either event, the undertaking is absolute, 
and the guarantor may pay the amount, or see that it 
is paid. This is not the case of a guaranty of solvency 
or collectibility, which requires previous demand and 
suit. Klein v. Kern, 94 Tenn., 34, 28 S. W., 295, and 
authorities there cited. 

The only explanation of this unbusinesslike procedure 
on the part of complainant bank is that the firm of 
guarantors did a valuable business with the bank and 
that complainant would do anything to protect them. 

The main proposition presented by counsel for de- 
fendants is that complainant is not a holder of said 
paper for value within the meaning of our n^otiable in- 
strument law. It is said it is not shoT^oi that complain- 
ant has ever paid anything in money, or the equivalent, 
for said paper ; but the cashier of the bank merely testi- 
fies that he gave said firm "credit for the amount at the 
First National Bank of Elgin." It is said it is not 
shown that said credit was ever used by said indorsers, 
W. S., J. B. & B. Dunham. The entire testimony on 
this subject is found in the deposition of A. C. Hawkinsj 
cashier of the complainant, Elgin City Banking Com- 
pany. He tells of the purchase of said notes, together 
with sundry other notes, in one lot, from W. S. Dun- 
ham, of the firm of W. S., J. B. & B. Dunham, paying 
therefor the full amount of said notes, with accrued in- 



564 TENNESSEE REPORTS. [119 Tenn. 

Banking Co. ▼. HalL 

terest to date of purchase, at said bank, in the usual 
course of business. This was the testimony of the wit- 
ness on his direct examination, from which it appears 
that a prima facie case of a holder for value is made 
out; but, on cross-examination of the witness at a later 
date, he was asked, "Q. 4. Do you recall how you paid 
for them [referring to the notes] ?" and he answered, 
''I gave them credit for the amount at the First National 
Bank of Elgin on the 18th day of July, 1904." It will be 
observed that the alleged credit was not given in the 
bank which purchased the notes (the complainant, Elgin 
City Banking Company), but at a different bank, name- 
ly, the First National Bank of Elgin, 111. 

The law seems to be settled that, when a bank simply 
discounts a note and credits the amount thereof on the 
indorser's account, without paying to him any value 
for it, it is not enough to constitute such bank a prima 
facie purchaser for value of the note. Selover, Neg. Inst 
Laws, p. 217 ; 2 Amer. & Eng. Ency. of Law, 391, 892 ; 
Warman v. First Nat. Bank, 185 111., 60, 57 N. E., 6, 49 
L. R. A., 412. 

The reason is that the proceeds of the discount may 
be credited to the bank by making a change of entries on 
its own books. It is said, however, that this rule of law 
has no application where the credit to the seller of nego- 
tiable paper is given by the purchaser, not on its own 
books, but in a diflferent bank. It is said the presump- 
tion must be, in such case, that the purchaser has paid 
money, surrendered securities, released an obligation, or 



11 Gates] SEPTEMBER TERM, 1907. 563 

Banking Co. t. Hall. 

itself assumed an obligation in the other bank, in order 
to secure this credit The record fails to show why pay- 
ment of the notes was made in this manner, nor the pre- 
cise nature of the transaction by which the complain- 
ant bank secured credit to the seller in the First National 
Bank of Elgin for the amount of these discounted notes. 

It is well settled that a purchaser of commercial paper 
is a holder for value and in due course of trade, when 
he "has given for the note his money, goods, or credit, 
at the time of receiving it, or has on account of it su> 
tained some loss or incurred some liability.'* Nichol v. 
Bate, 10 Yerg., 429; Kimbro v. Lytle, 10 Yerg., 417, 31 
Am. Dec, 585; Bank v. Johnston, 105 Tenn., 521, 59 S. 
W., 131. 

As already seen, by section 25 of our uo^otiable in- 
strument law (Acts of 1899) it is provided: "Value 
is any consideration sufficient to 8upi)ort a simple con- 
tract." There is no trouble, therefore, in holding that, 
if the complainant bank had obtained credit in favor 
of the seller in a solvent bank for the anount of tho 
discounted paper, that would be a suflQcient considera- 
tion to constitute the purchaser a holder for value. 

The difficulty presented arises out of the indefinitc- 
ness of the testimony. The witness was not asked by 
counsel on either side for an explanation of his state- 
ment, "I gave them credit for the amount at the First 
National Bank at Elgin." It does not appear from the 
record that this credit waa ever used by W. S., J. B. & B. 
Dunham. It does not appear how the credit was given, 



566 TENNESSEE REPORTS. [119 Tenn. 

Banking Ck>. T. Hall. 

and the court cannot determine, from the unexplained 
statement of the witness, whether or not the credit was 
real and substantial. The burden of proof is on com- 
plainant to show, on these facts, that it was a holder 
for value. 

The fraud that vitiated the original transaction was 
the conduct of the agent, Campbell, in representing to 
five of the purchasers that Beard, Hall, and Thurston 
had become equal partners in the purchase of the horse, 
when this agent had secretly arranged with these three 
parties to pay them a consideration to allow the use 
of their names as purchasers and to release them from 
the payment of their quota of the purchase money. 

AfBrmedi 



11 Gates] SEPTEMBER TERM, 1907. 567 

Cross V. Keathley. 

W. A. Cross v. R. M*. Keathley. 
(Knoxville. September Term, 1907) 

1. ELECTIONS. Distingtiishing marks rendering ballots void 
under uniform ballot law. 
Ballots containing, in addition to the matter prescribed by the 
uniform ballot law (Acts 1891, ch. 21), certain dotted lines and 
solid black lines, and before the name of each office to be filled 
the word "for," and after the words "Justice of the peace" the 
words "vote for two," and after the words "school directors" 
the words "vote for three," contain distinguishing marks, signs 
or insignia not authorized, but prohibited by, the statute, 
which render the ballots void. 

Acts cited and construed: Acts 1891, ch. 21. 

Numerous cases in other States cited and approved in the opin- 
ion of the court, on pages 677-581. 

d. SAME. Ballots are not invalidated by being clipped after they 
were voted and thus reduced below the prescribed size. 
Ballots of the size required and prescribed by the uniform ballot 
law (Acts 1891, ch. 21, as amended by Acts 1893, ch. 101) , when 
they were voted, cannot be invalidated by being clipped after 
they were voted, nor should they be rejected because they 
were clipped after they were voted. {Post, pp. 571, 575.) 

Acts cited and construed: Acts 1891, ch. 21; Acts 1893, ch. 
101. 



FROM SCOTT. 



Appeal from the Circuit Court of Scott County.- 
G. Mo. Henderson, Judge. 



568 TENNESSEE REPORTS, [119 Teno. 

Cross y. Keathley. 

James F. Baker and Templbton & TEMPiiEnx)N^ for 
Cross. 

E. Q. Foster, D. Jeffers, William Tork^ and James 
A. Fowler^ for Keathley. 



Mr. Justice Neil delivered the opinion of the CJourt 

This case involves a contested election for the office 
of register of Scott county. The original petition was 
filed by W. A. Gross in the county court of Scott county, 
on the 7th day of August, 1906. After alleging that 
the petitioner was qualified to hold the office of register 
of Scott county, and that he was a candidate for this 
office, at the August election, 1906, and that his op- 
ponent was R. M'. Keathley, it was allied, in substance, 
that there were cast in the election 2,016 votes, of which 
the petitioner received 1,012, while the tontestee Keath- 
ley received only 1,003, leaving the petitioner a majority 
of nine votes, but the election commissioners wrongfully 
refused to count the returns from the Eleventh district, 
from which the i)etitioner received thirty-three votes, 
while the contestee received only sixteen and that by re- 
jecting these returns the contestee was declared to have 
a majority of the votes cast, and the certificate of elec- 
tion was by the commissioners of election issued to 
him. 

In August, 1906, the contestee filed his answer, in 
which he admitted that the election commissioners re- 
fused to count the returns from the Eleventh district, 



11 Gates] SEPTEMBER TERM, 1907. 569 

Gross y. Keathley. 

but denied that their conduct in so doing was ill^al 
and improper, and insisted that these votes were rightly 
rejected and should not now be counted. The contestee 
further allied that 361 ballots were cast for petitioner, 
Cross, which were illegal and should not have been 
'counted by the election commissioners and should now 
be thrown out, because upon each of these ballots before 
the name of each office there was printed the word "for," 
and there was also printed upon each of them, and exr 
tending more than three-fourths of the way across the 
ballot, three or more dotted lines, and there was also 
printed, extending from one-third to one-half the way 
across the ballot, three or more heavy black lines or 
marks. It was averred that these marks, and the placing 
of the word "for" in the manner just related, were in 
violation of the uniform ballot law. 

It was further alleged that 156 ballots were cast and 
counted for petitioner, Cross, which were illegal, and 
should have been rejected, and should now be excluded, 
because these ballots had, likewise, printed before the 
name of each office the word "for," and because there 
were printed upon each of said ballots, and extending 
more than three-fourths of the way across, eight or 
more broken lines or marks, and there were also printed 
upon said ballots, and extending from one-third to one- 
half the way across, three or more heavy black lines or 
marks, and after the words "justice of the peace^' there 
were printed the words "vote for two," and after the 



570 TENNESSEE REPOETS. [119 Tenn. 

Cross y. Keathley. 

words "school directors" there were printed the words 
"vote for three." 

The number of each of the ballots cast at each pre- 
cinct, except for the First and Twelfth districts, was 
particularly alleged, and a sample of each of the said 
ballots was attached to the answer, marked, respectively, 
"Exhibit A" and "Exhibit B." 

It was also alleged in the answer that there were 
sixty-four ballots counted for petitioner. Cross, which 
were less than 6^ inches in length, and one ballot was 
counted for him which was less than 2^ inches in 
width; that of these ballots thirty were deposited in 
the ballot box in the Sixth district, an thirty-four were 
deposited in the ballot box of the Winfield district; and 
that the thirty ballots which were cast in the Sixth dis- 
trict were also ill^al on account of the marks and words 
above described. It was insisted that all of these bal- 
lots, for the reasons mentioned, should be rejected. 

On August 21, 1906, the petitioner filed an amended 
petition, in which, in addition to the grounds of conten- 
tion relied upon in the original petition, he alleged that 
twenty-eight persons whose names were given and who 
had voted for contestee, Keathley, in the Fifth district, 
were not citizens of Scott county, and were therefore not 
entitled to vote. On August 26, 1906, the contestee filed 
an answer to this petition, in which he denied that por- 
tion of the allegation in reference to the persons voting 
in the Fifth district. 

In the county court the case was decided in favor of 



11 Gates] SEPTEMBEK TERM, 1907. 571 

Cross y. Keathley. 

the petitioner op contestant, and judgment rendered ac- 
cordingly. From this judgment an appeal was prayed 
and prosecuted to the circuit court In the latter court, 
the judgment of the county court was affil*med; it 
having been held by his honor the trial judge that the 
returns from the Eleventh district should be counted, 
and that the classes of ballots which had the marks or 
lines and the superfluous words alleged in the contestee's 
answer were not for that reason invalid ; that the short 
and narrow ballots had been clipped after being voted, 
and consequently were properly counted; and that the 
persons mentioned in the amended petition as having 
voted for contestee in the Fifth district were not citi- 
zens of Scott county and were not legal voters. On 
these grounds, as stated, judgment was entered in favor 
of the petitioner, contestant, Cross. 

From the latter judgment, after motion for a new trial 
had been made and overruled, an appeal was prosecuted 
to this court by the contestee, and errors have been 
here assigned. 

The errors assigned are as follows : 

"(1) The court erred in counting for contestant the 
thirty-four short ballots, and the one narrow ballot from 
the Winfield precinct in the Eighth district, and the 
thirty short ballots in the Sixth district. He should 
have held that said ballots were invalid, because when 
voted they were of less length, and the one ballot was 
of less width, than as required by law. 

"(2) The court erred in refusing to reject the 361 



572 TENNESSEE REPOBTS. [119 Tenn. 

Cross ▼. Keathley. 

ballots which were cast for Gross in the sereral dis- 
tricts alleged in the contestee's first answer, and which 
had printed thereon, before the name of each office, the 
word ^for/ and also had printed thereon, and extending 
more than three-foxu-ths of the way across said ballot, 
three dotted lines or marks, and also extending one-third ^ 

to one-half of the way across said ballot three heavj' 
black lines or marks. The court should haye held that 
said words and marks rendered said ballots inyalid. 

"(3) The court erred in refusing to reject the 156 
ballots which were counted for Cross in the several dis- 
tricts alleged in the contestee's first answer, which had 
printed thereon, before the name of the office to be filled, 
the word ^for,' and also after the words ^justice of the 
peace' the words ^vote for two,' and after the words 
'school directors' the words *vote for three,' and also had 
printed thereon, and extending about three-fourths of 
the way across the same eight broken lines or marks, 
and extending from one-third to one-half of the way 
across the same, three heavy black lines or marks. The 
court should have held that on account of the presence 
of said words and marks on said ballots the same were 
invalid. 

"(4) The court erred in excluding from the votes 
counted for contestee the twenty-eight ballots which 
were cast for him and counted by the election officers 
in the Fifth district The court should have held that, 
said votes having been received and counted by the 
election officers, the presumption was that they were 



11 Gates] SEPTEMBER TERM, 1907. 573 

Croes T. Keathley. 

legal, and that there was not sufficient evidence intro- 
duced upon the subject to overcome this presumption, 

"(5) The court erred in setting aside the action of 
the election commissioners in refusing to count the 
votes from the Eleventh district, and in now permitting 
said votes to be counted and considered in making the 
final result of said election/' 

The questions raised by assignments Nos. 1, 2, and 3 
arise under the uniform ballot law (chapter 21, p. 42, 
Acts Ext. Sess. 1891), and in an amendment thereto 
< chapter 101, p. 208, Acts i&93). 

The first act (omitting the caption and the enacting 
clause) reads as follows: 

"Section 1. That in all elections in the State of Ten- 
nessee, whether national. State or county, or municipal, 
except where the provisions of the act approved April 
4, 1889, being chapter 188 of the printed Acts of 1889, 
and the acts amendatory thereof apply, the ballots to 
be voted shall be of plain, white paper, seven inches long 
and three inches wide, upon which the office to be filled, 
with the name or names to be voted for, shall be plainly 
written or printed. 

Sec. 2. That it shall not be lawful to print or place 
any picture, sign, color, mark, index or insignia thereon, 
and SLuy ballot of less or greater dimensions than as 
provided in the first section of this act, or any ballot 
upon which said picture, sign, color, mark, index or 
insignia may be placed, if found in the ballot box shall 



574 TENNESSEE REPORTS. [119 Tenn. 

Cross V. Keathley. 

not be counted by the judges holding said election, but 
shall be treated as invalid. 

"Sec. 8. That it shall not be lawful for any person 
to give, offer or impose upon any elector exercising or 
in contemplation of exercising the elective franchise at 
any election in this State any ballot other than is pro- 
vided as aforesaid; and any person so offending shall be 
guilty of a misdemeanor, and on conviction, shall be 
fined not less than twenty-five nor more than fifty dol- 
lars, and imprisoned ninety days in the county jail or 
work-house. 

"Sec. 4. That any officer holding said election who 
shall knowingly receive, or the judges thereof who shall 
count any ballot other than as provided in the first sec- 
tion of this act shall be also guilty of a misdemean<M*, 
and on conviction thereof shall be punished as provided 
in the third section of this act. 

"Sec. 5. That the grand juries of this State are hereby 
given inquisitorial power touching offenses committed 
under this act. 

"Sec. 6. That all laws and parts of laws in conflict 
with this act be and the same are h"ereby repealed, and 
that this act take effect from and after its passage^ the 
public welfare requiring it." 

Chapter 101 of the act of 1893 amends the fiijJt sec- 
tion of the above-mentioned act of 1891 so as to provide 
"that the ballots to be voted shall be of plain, white 
paper, three inches wide and seven inches long; provided 
that they shall not deviate more than one-eighth of an 



11 rates] SEPTEMBER TERM, 1907. 575 

Cross Y. Keathley. 

inch in length and one-sixteenth of an inch in width." 
If the ground of the circuit judge^s action in respect 
of the question presented by the first assignment is 
sustained by the evidence, of course, his conclusion in re- 
spect of that matter, was correct; that is, if the ballots 
were clipped after they were voted, this certainly could 
not invalidate the action of the election officers in count- 
ing them. Nor could it justify the circuit judge or this 
court in throwing them out in the present contest. How- 
ever, in the view we take of this case, we find it unneces- 
sary to decide the question of fact. We also are of the 
opinion that it is unnecessary to decide the questions 
raised by the fourth and fifth assignments, since we are 
of the opinion that the controversies presented by the 
second and third assignments are decisive of the case. 

We shall therefore confine this opinion to the consid- 
eration of the two assignments last mentioned. 

We have been referred by counsel to numerous cases 
from other States construing more or less similar stat- 
utes enacted by the legislatures of those States. These 
decisions, many at least, can be of little service to us, 
further than to warn us of the confusion which neces- 
sarily arises when an attempt is made to give what may 
be called an equitable construction to such statutes, 
rather than one which seeks to rigidly enforce the policy 
evidenced by their enactment. It would be an unneces- 
sary waste of time to attempt an examination of a title 
of these cases. We shall refer, in the course of what 
follows, to a few of these decisions which seem to us 



576 TENNESSEE REPORTS. [119 Tenn. 

Cross y. Keathley. 

to be especially apposite to the controversy now before 
the court ; but we shall base our conclusion wholly upon 
what we deem to be a proper construction of our own 
statute in the light of the policy of such legislation. 

It is manifest from the stringent provisions concern- 
ing the length and width of the ballot, and the careful 
and exact language of the amendment in respect thereto, 
that it was the purpose of the legislature that the provi- 
sions of the act should be obeyed with exactness. This 
purpose likewise is shown in the sections providing for 
criminal responsibility. 

It was the clear purpose of the legislature that the 
ballots should be of a specified length— no longer and 
no wider than prescribed— except a little play allowed 
for the shrinking of the paper after drying^ as shown 
in the amendment. It was its purpose that these bal- 
Ibts should be on plain, white paper, and that they should 
have nothing on them except the name of the office to be 
filled and the name or names of the candidates voted 
for. The rules thus laid down in the statute are clear 
and explicit, and may be easily complied with. They 
can be understood by voters of all degrees of intelligence; 
no speculation is needed; no fine-spun distinctions; no 
subtle reasonings. If we depart from this plain path, 
and digress into controversies whether from this or that 
extraneous feature appearing in the ballots the intention 
of the voter can be gathered, or whether this or that ex- 
traneous matter renders the intention of- the voter un- 
certain, as some of the decisions do, we at once render 



11 Gates] SEPTEMBBB TBBM, 1907. 677 

Gross y. Keathler. 

nncortain that which was dear, definite and predse, 
and lay the ground for endless controyersies. 

We are of the opinion that the policy underlying our 
statute can be best serred by adherii^ as nearly as pos- 
sible to a literal construction. 

Assignments Noa 2 and 3 set forth correctly the con- 
tents of the record upon the subjects therein referred 
to, except that the lines refarred to as heayy black lines 
are more accurately described as solid black lines. 

We think it clear that the brcdcen or dotted lines and 
the solid black lines referred to in these assignments 
were marks of a kind which render th^e ballots void 
under the act of 1891. We are also of the opinion that 
the words **TOte for two/' and the words **vote for three," 
appearing upon the ballots mentioned in the third assign- 
ment, were such signs, marks, or insignia as likewise 
rendered those ballots void. 

We are likewise of the opinion that the use of the 
wqrd ^^f or" in the manner stated in the second and third 
assignments rendered all the ballots referred to in those 
assignments void. 

We shall now refer to two or three decisions stating 
similar views. 

The Mississippi statute provides that: ^^AU ballots 
shall be written or printed with black ink with a space of 
not less than one-fifth of an inch between each name, on 
plain white news printing paper, not more than two 
and one-half, nor less than two and one-fourth inches 

119 Tenn.— 37 



578 TENNESSEE REPORTS. [119 Tenn, 

Cross Y. Keathley. 

wide, without any device op mark by which one ticket 
may be known or distinguished from another, except the 
words at the head of the tickets; but this shall not 
prohibit the erasure, correction or insertion of any name 
by pencil mark or ink upon the face of the ballot; and a 

ticket different from that herein prescribed shall not be 

f 

received or counted." 

In Ogleshy v. Siginan, the ballots in question in that 
case had under the heading ^^Republican National 
Ticket" a printer^s line or dash rule of slightly orna- 
mental character, and at three other distinct places a 
name, a dash rule; two of them being plain. It was 
held that they vitiated the ballots, as marks by which one 
ticket might be distinguished from another. 58 Miss., 
502. 

In Steele v. Calhoim, a printed dotted line between 
the last office named on it and the preceding name was 
held to invalidate the ballot; the court affirming that 
it was not permitted to distinguish between the different 
devices or marks put on ballots. 61 Miss., 656. 

In another case, tickets were rejected because the 
names of the candidates for the legislature were found 
to be less than one-fifth of an inch apart Perkins v. 
Carrauxiy, 59 Miss., 222. 

Other instances of a similar rigid construction may 
be found in the following cases: 

In State, ex rel. McMillan, v. Sadler, 25 Nev., 131, 58 
Pac, 284, 83 Am. St Rep., 573, it was held that ballots 
with equation marks between the printed names of the 



11 Gates] SEPTEMBER TEBM, 1907. 579 

Cross Y. Keathley. 

candidates and the party designation were invalid. In 
People, ex rel. Beasley, v. Scmsalito, 106 Cal., 500, 39 
Pac, 937, it was held that a ballot on which the marks 
were made with a lead pencil, and not with the official 
stamp, as required by statute, should be excluded. In 
People, ex rel Obert, v. Bovrke, 30 Misc. Rep., 461, 63 
N. Y. Supp., 906, it was held that ballots marked with a 
purple lead pencil, instead of a black pencil, as required 
by the New York election law, were invalid. It has also 
been held in other cases that ballots marked with ink, 
or with blue or purple pencils, instead of black lead 
pencils, as required by statute, are invalid and cannot 
be counted. State, ex rel. McMillan, v. Sadler, supra; 
Dennis v. Cauglin, 22 Nev., 447, 41 Pac., 768, 29 L. R. 
A., 731, 58 Am. St Rep., 761*. 

In Fan Winkle v. Crabtree, 34 Or., 462, 55 Pac, 831, 
it was held that ballots on which the word **voted'* or 
"voted for'' were written after the name of a candidate 
contained distinguishing marks by which they might 
be identified, and should not be counted. In Staie, ex 
rel. Baxter, v. Ellis, 111 N. C, 124, 15 S. E., 938, 17 
L. R. A., 382, it was held that ballots maiiced on the 
outside with the letters "(X K." in lead pencil could not 
be counted. In State, ex rel. Orr, v. Fatooett, 17 Wash., 
188, 49 Pac, 346, it was held that ballots on which were 
written across the amendments the words "rats," or 
"don't want any king," should be excluded. In Ma/iwk 
V. Broion, 59 Neb., 313, 81 N. W., 313, it was held that 
a ballot marked with a cross in a party circle, and con- 



686 TBNNE8SBE BEPOBTS. [119 Tenn. 

CroM T. Keathley. 

taining the word ^'against^' written under the name of a 
candidate for an office of another party, and the word 
^^for" written under the name of a candidate for the 
same office of the party in whose circle the croM was 
made, contained identifying marks within the prohibi- 
tion of the Nebraska statute, and i&ould not be counted. 

In Fields V. Osborne, 60 CJonn., 544, 21 AtL, 1070, 12 
L. B. A., 651, it was held that the word ^^for," appear- 
ing before the name of the office on all the ballots used 
in the election, did not invalidate them, on two grounds: 
First, because the statute was ambiguous, and it could 
not be clearly determined whether the use of this word 
was improper; and, secondly, because it was used gen- 
erally upon the tickets of both partie& Concluding the 
discussion of the question, the court said: ^^If the regu- 
lar ballots issued by a political party contain the word 
'for' before the title to the offices therein named, then it 
cannot be held to be a mark or device, so that the same 
can be identified in such manner as to indicate who 
might have cast the same, and therefore is not obnoxious 
to that provision. If the regular ballots of the political 
party omit the word 'for,' then the use of the word on 
some of the ballots cast, inasmuch as it would be a mark 
or device by which the same might be identified, would 
be irregular. Each case must be governed by its own 
circumstances, and be decided as a question of fact un- 
der the principles herein stated." 

In the later case of State, ex rek Phelan, v. Walsh, 
62 Conn., 260, 21 AtL, 1, 17 L. B. A., 364, 369, Fields v. 
Osborne was followed without comment Even under 



11 Gates] SEPTEMBER TERM, IMT, B8t 

CroBs Y. Keathley. 

the case of Fields v, Oshome the use of the word "for/' 
in the present case would make the ballots Toid, be- 
cause th^ were only a part of the ballots used in the 
election and were distributed all over the different vot- 
ing precincts, as follows : Of thekind within the second 
assignment there were four votes in the Second district, 
at Huntsville; at Helenwood there were seven, in the 
same district; in the Third district, at Glenmary, ihere 
were sirty-four, and at Robbins there were twenty-flve, 
in the Fourth district there were ten; in the Sixth dls> 
trict there were 32; in the Seventh there were twenty- 
eight ; at Oneida, in the Eighth, there were eighty-seven ; 
at Winfleld, in the Eighth, there were twelve, in the 
Ninth district there were six; in the Tenth district fif- 
teen, in the Eleventh district there were twenty, and 
in the Thirteenth there were fifty-one. 

Of the kind of ballots described in the third assign- 
ment there were eight votes at Helenwood in the Second 
district, and eight at Olenmary in the Third district^ and 
at Robbins in that district eighteen; and there were ten 
in the Fourth district, nineteen in the Sixth district, 
twenty-two in the Seventh district, thirty in the Eighth 
district at Oneida, one at Winfleld, sixteen in the Ninth 
district, three in the Tenth district, three in the Eleventh 
district, fifteen in the Thirteenth district^ and three in 
the Fourteenth district 

We deem it unnecessary to state the reasons und»ly- 
ing the passage of the act in question, further than that 
it was to prevent fraud. What the various devices of 
fraud may be no man can forecast. We deem it unwise 



582 TENNESSEE BEPOBTS. [119 Tenn. 

Cross Y. Keathley. 

to further confine the act, but if the purpose of the act 
was to check, among other devices of fraud, that of brib- 
ery and intimidation, and as a means thereto rendering 
impossible methods of identification, then it is clear that 
the use of any of the marks mentioned, or any of the 
words mentioned, might be a device of identification. 
Of course, as the number of the ballots so used increases, 
the opportunity for identification is lessened. Still the 
law cannot be administered on such basis, because it 
would be impossible to say at what number the capacity 
to identify would end. The question must be decided on 
the quality and capability of the word or device, rather 
than upon any such consideration as the number of per- 
S0XU9 who may make use of it. A rule based on the num- 
ber that might be used would be wholly impracticable 
and incapaJt>le of administration. ' 

On the grounds stated, we are of the opinion that the 
361 ballots mentioned in the second assignment, and the 
156 mentioned in the third assignment, were improperly 
counted for the petitioner, contestant, and that the cir- 
cuit judge committed error in holding to the contrary, 
and the judgment must be reversed. 



11 Gates] SEPTEMBER TERM, 1907. 583 

Hurd y. State. 

Will Hubd v. State.* 

(Knoxville. September Term, 1907.) 

1. OB.IMINAL LAW. No autliority to arrest without warrant 
for a misdemeanor not committed in the officer's presence. 

An officer has no authority to arrest one without a warrant for 
the misdemeanor of unlawfully carrying a pistol, or for other 
misdemeanors, not committed in his presence, but the commis- 
sion of which is communicated to him by others. {Post, pp. 
591-593.) 

Code cited and construed: Sec. 6997 (S.); sec. 5863 (M. & 
v.); sec. 5037 (T. ft S. and 1858). 

Code cited and approyed: Pesterfleld y. Vickers, 3 Cold., 215. 

2. SAME. Killing in reslstingr arrest by one without notice of 
his official character is manslaugrhter or in self-defense, when. 

Where one kills an officer attempting to arrest him, and there 
is nothing from which the official character of the officer can 
be inferred, the offense is reduced to manslaughter, though the 
officer had power to make the arrest; and where a person is 
placed in a position in which his life is imperiled by the act 
of another, having no notice of the official character of the 
latter, and the killing is apparently necessary to save his own 
life, the homicide is committed in self-defense, though the of- 
ficer was legally seeking to arrest the accused. {Post, pp. 
591-597.) C 

Case cited and approved: Note in Ready v. Peojple, 66 L. R. A:, 
353, 387. 
8. SAME. Charge erroneous as to want of knowledge of official 
character of the arresting officer, and lawfulness of arresting 
for a misdemeanor without a warrant. 

Where, on a trial for the murder of an officer while attempting 
to arrest the accused who killed the officer in resisting such 



*As to homicide in resisting arrest, see note to Keady y. Peo- 
ple (Colo.), 66 L. R. A., 353. 



684 TENNESSEE BEPOBTS. [119 T^n. 

Hnrd t. State. 

arrest, there was a conflict in the testimony on the questions 
(1) whether the accused knew that the deceased was an of- 
ficer and was attempting to arrest him, and (2) whether a 

third person said to the deceased: ''Shoot the ; he has 

got a gun," the failure to charge that the want of knowledge 
of the ofiLdal character of the deceased and his purpose to 
make the arrest might, if the other facts warranted it, reduce 
the homicide to manslaughter, and the giving of a charge that 
the officer might make the arrest for a misdemeanor not com- 
mitted in his presence, with or without warrant, accompan- 
ied by a charge that the material inquiry was whether the 
deceased was attempting to make a lawful arrest, and if he 
was, and while in the discharge of his duty, using no more force 
than was reasonably necessary, the accused killed him he 
would be guilty of murder, constituted reversible error. {Post, 
pp. 588-597.) 



FROM HAMILTON. 



Appeal in error from the Criminal Court of Hamilton 
County. —S. D. McReynolds, Ju<lge. 

Howell Titus, for Hurd. 

Assistant Attornht-Gbnbral Faw, for State. 



11 Gates] SEPTEMBER TERM, 1907. 685 

Hiird ▼. State. 

Mb. JusncB McAlistee delivered the opinion of the 
Oourt. 

The prisoner was convicted in the criminal court of 
Hamilton county for the crime of murder in the first 
degree, with the judgment of death, for the unlawful 
killing of one T. O. Musgrove. The deceased was a po- 
liceman of the city of Chattanooga, but at the time of 
his death was dressed in citizen's clothes^ and it does 
not distinctly appear that the prisoner knew at that 
time the deceased was a police officer. The theory of the 
state is that Musgrove at the time of his death was at- 
tempting to arrest defendant, Hurd, for the offense of 
unlawfully carrying a pistol. 

The shooting, which resulted in the death of Musgrove 
a few hours later, occurred about 9 or 9 :30 o'clock p. m., 
on White street, in South Chattanooga, near the saloon 
of one E. L. Shepherd. This saloon was situated on the 
corner of Whiteside and White streets, fronting on 
the east side of Whiteside street and running back along 
the north side of White street There are large glass 
doors in the front of the saloon, and at the rear end 
of the building there was a door leading from the back 
room of the saloon out into White street The saloon 
was divided by a partition into two rooms, and the front 
room was known as the white bar, and the rear room 
as the colored bar; but there seems to have been an in- 
discriminate mixing of the whites and blacks at each of 
these bars. Witnesses testified that this saloon was the 
usual loafing place of Musgrove, the deceased, when 



586 TENNESSEE BEPOETS. [U9 Tenn- 

Hard y. State. 

he was off duty. At the time of the tragedy, deceased 
was off duty, and had been around the saloon for some 
hours, sitting in the back room with some white men 
and some negroes; and it is stated by the barkeeper, a 
State's witness, that Musgrove was endeavoring to sober 
up, as he was 'expecting to go on duty the same night. 
Among other persons in the back room with deceased 
were J. D. Drennan, who, the barkeeper says, had been 
drinking, but was also sobering up. The prisoner went 
into Shepherd's saloon about half or three^uarters of an 
hour before the shooting. It is shown he remained in 
the front room, and did not go back to the rear room, 
where the deceased was; and it does not appear that 
deceased and the prisoner saw each other until the meet- 
ing in the street at the time of the shooting. 

While the prisoner was in the front room, the bar- 
keeper, Culver, treated defendant a time or two, and the 
defendant treated Culver to drinks or cigars. The pris- 
oner took four or five drinks, and during the conversa- 
tion, according to the witness Culver, the prisoner was 
^'telling them in there about the deputy sheriffs and 
police, and said that he always got on very well with the 
deputy sheriffs and police, but when one went to arrest 
him he is going to get the contents of my gun." And in 
a few minutes he said, "I can't tell you anything about 
white men, but I can tell you all about a nigger, and I 
ain't got half time to tell you about them." It seems 
that in a few minutes Shepherd, the proprietor of the 
saloon, who was an intimate friend of the deceased, and 



11 Gates] SEPTEMBER TERM, 1907. 587 

Hurd Y. State. 

who had been in the back room with the deceased while 
the conversation between the prisoner and the barkeeper 
and others occurred in the front room, came into the 
f j^nt room and began to check up his cash register. The 
prisoner, who knew Shepherd, asked him to "set 'em 
up." Shepherd declined. The prisoner then asked Shep- 
herd to take a drink with him, or, as the barkeeper testi- 
fied, the prisoner said, "If you are going to be short 
about it, I will set 'em up," and remarked to Shepherd, 
"I have been trading here with you over two years," to 

which Shepherd replied, "I don't give a d n if you 

have; I am not going to set 'em up, and if you don't like 
it you can just get out of my place," to which the defend- 
ant replied, in substance, "All right, Mr. Shepherd; I 
will get out of your place— I am as. good a man as any 
man," and started towards the door. As the prisoner 
passed out of the front door to Whiteside street. Shep- 
herd, the proprietor of the saloon, threw a glass at him, 
which struck the door facing and crashed, without strik- 
ing the defendant Culver, the barkeeper, testified that 
immediately thereafter he saw the prisoner out on the 
sidewalk with a pistol in his hand. Thereupon the bar- 
keeper seized a pistol from behind the bar, and, covering 
the prisoner, said to him, in substance, "If you shoot in 
here you are a dead nigger," and thereupon the prisoner 
started around the corner down Whiteside street east- 
ward in the direction of his home. 

As already stated, there was a door leading from the 
rear room of the saloon out into White street. As the 



588 TENNESSEE BEPOBTS. [119 Tenn. 

Hard y. State. 

prisoner disappeared around the comer, going into 
White street, Culver, the barkeeper, passed tiirough the 
partition door into the rear room of the saloon, and 
there stated to Musgrove, the deceased, that a fellow hkd 
gone around the house with a gun, and to go out and 
catch him. Thereupon Miisgrove, the deceased, turned 
and went out of the back door of the saloon opening on 
White street, while Culver, the barkeeper, went out the 
front door leading into Whiteside street. Culver was 
accompanied by the witness W. R. Mcintosh, a nephew 
of the deceased, and Drennan, who was sitting in the 
rear room with Musgrove, followed Musgrove out the 
back door. Musgrove intercepted the prisoner about the 
edge of the street car track, and immediately seized him, 
when a struggle ensued. 

There is testimony tending to show that, as Musgrove 
approached the deceased, Drennan, who was following 

Musgrove, exclaimed, "Shoot the ; he has got a 

gun.'' About this time the prisoner raised his pistol 
and fired two shots at Drennan, both of which took 
effect, one in the body and the other in the arm or hand. 
After shooting Drennan, the prisoner turned his pistol 
on Musgrove, shooting him three times. Extricating 
himself from the grasp of Musgrove, the prisoner ran 
from the scene, followed closely by Musgrove, who in 
the meantime had drawn his own pistol and emptied it at 
the prisoner, while the latter was running, but none of 
his shots took effect. The prisoner having escaped, Mus- 
grove reloaded his pistol and returned to the saloon, but 



11 Gates] SEPTEMBER TERM, 1907. 689 

Hard v. State. 

was soon carried to his own home, where he died a few 
hours later. 

The prisoner admits that he knew MusgroTe, at least 
by sight ; but he states that he had never seen him except 
in a policeman's uniform. In this connection, as al« 
ready stated, Musgrove was in citizen's clothing and 
was not wearing the uniform of a policeman. 

It should be stated that the killing occurred in the 
nighty between 9 and 9 :30 o'clock ; but there was an elec- 
tric light at the comer of Whiteside and White streets, 
and it was a moonlight night. The evidence, however, is 
undisputed that Musgrov^ the deceased, had a i>olice- 
man's star under his coat Culver and Musgrove, who 
were standing at the northwest corner of the saloon at 
the comer of Whitside and White streets when the 
tragedy occurred, both testify that when Musgrove seized 
the prisoner, and before the shooting, Musgrove threw 
back his coat, showing his badge, and saying to defend- 
ant: "Consider yourself under arrest. I am an officer of 
the law." It is due the defendant to say that he denies 
that he heard this statement, or that he saw the star, 
or that he recognized the deceased. 

The theory of defendant is that, when Shepherd threw 
the glass at him as he emerged from the door of the sa> 
loon, he was excited and alarmed, and immediately ran 
around the comer of Whiteside street and started directs 
ly home. He denies that he drew his pistol in front of 
the saloon on Whiteside street. The evidence is uncon- 
tradicted that the prisoner, after passing out of the sa* 



690 TENNESSEE BEPOBTa [119 Tenn. 

Hard v. State. 

loon on Whiteside street, left the scene of the difficulty, 
turned down White street, and was proceeding in the 
general direction of his home, and was so proceeding 
when the deceased, accompanied by Drennan, ran out of 
the back door of the saloon on White street and seized 
the prisoner. It appears that, when the deceased and 
Drennan emerged from the saloon, the prisoner at- 
tempted to avoid them and went into the middle of the 
street His theory is that he did not know that Mus- 
grove was an officer, and believed that the approach of 
these parties was for the purpose of continuing and 
following up the assault which had already been made 
upon him in the saloon. He claims that this belief was 
based upon the fact that two men followed him around 
the comer of Whiteside street from the front room of 
the saloon, and two men emerged from the rear room 
through the door on White street 

The defendant, it should be stated, proved a good char- 
acter. Mr. A. F. Oustafson, proprietor and manager of 
the Gustafson Manufacturing CSompany, testified that 
defendant had been in his employ almost continuously 
for three years immediately preceding the homicide, 
and that his general character for peace and quiet in 
the community was excellent; that his general reputa- 
tion for truth and veracity among the shopmen was 
very good, and from that general reputation he would 
give him full faith and credit on his oath in a court of 
justice. Three other witnesses testified to the good char- 
acter for peace and truth of the prisoner. The State in- 



11 Gates] SEPTEMBER TERM, 1907. 591 

Hurd y. State. 

troduced no witnesses attacking his general character. 

An examination of the record has satisfied us that 
there was a conflict in the testimony npon two material 
questions of fact: (1) Whether defendant knew, or 
the circumstances were such as necessarily to fix him 
with knowledge, that deceased was an officer and was 
attempting to arrest him ; and in this connection whether 
deceased threw back his coat, and showed his police- 
man's star, and said to defendant, ^^Consider yourself 
under arrest; I am an officer of the law." (2) Whether 
Drennan said to Musgrove, the deceased, as he left the 

door and advanced toward defendant, "Shoot the ; 

he has got. a gun.'' In view of this confiict in the tes- 
timony, the object of the persons who were advancing 
upon the defendant was a very material inquiry in 
the case, as it would illustrate the mind of the defendant 
as to his apprehensions of danger. 

We are of opinion, in view of the facts disclosed in 
this record, that the trial judge was in ^ror in charging 
the jury as follows: 

"If T. (X Musgrove, deceased, was a policeman in the 
city of Chattanooga at the time he was killed, and direct 
information was brought to him that defendant, Hurd, 
had a pistol on his person, it was his duty, as well as 
his lawful auth(Nrity, to arrest said Hurd, with or with- 
out a warrant; and as to whether or not he was in uni- 
form would be immaterial. According to the Staters 
theory of this case," continued the court, "It is imma- 
terial as to who was in fault in the difficulty in the 



592 TENNESSEE BEPOBTS. [119 Tenn. 

Hurd ▼• State. 

Baloon, or as to wliat occurred therein. The material 
question for you to inquiry according to their theory, 
is : Was Policeman Musgrove^ at the time he was killed, 
attempting to make a lawful arrest? And, if he was, 
and while in the discharge of his duties, using no more 
force than was reasonably necessary, the defendant^ 
Hurd, refused to be arrested, and killed Policeman Mus- 
grove, then he would be guilty of murder." 

Now, as already stated, we are of opinion that these 
instructions present reversible error in this record. The 
theory of the State was that the deceased, Mxiagrore, 
was attempting to arrest the prisoner for the offense of 
unlawfully carrying a pistol, which offense is not a fel- 
ony, but a misdemeanor, under our statute. 

Section 6997, Shannon's Ck>de, provides: ^^An officer 
may, without a warrant, arrest a person (1) for a public 
offense committed, or a breach of the peace threatened, 
in his presence; (2) when the person has committed 
a felony, though not in his presence; (3) when a felony 
has in fact been committed and he has reasonable cause 
for belieying the perscm arrested to have committed it; 
(4) upon a charge made uiK>n a reasonable cause of a 
commission of a felony by the person arrested." 

So, in view of our statute, it was held, in Perterfield 
y. Tickers, 3 Gold., 215, '^that a police office of a city 
or town cannot arrest for an offense against the ordi- 
nances of the city, unless the offense was ccxnmitted in 
his presence, without first obtaining a warrant, unless 
the person arrested is guilty of a felony.'' 



11 Gates] SEPTEMBER TERM, 1907. 593 

Hurd y. State. 

It is clear from the record that t^e deceased was at- 
tempting to arrest the defendant for a misdemeanor 
which was not committed in his presence; but the fact 
of its commission was conimunicated by others, and the 
instruction of the trial judge that deceased had lawful 
authority to arrest defendant without a warrant was 
erroneous. 

But, in addition to this erroneous statement of the 
law, the court instructed the jury that whether or not 
he (Musgrove) was in uniform would be immaterial. 
The instruction, we think, ignored the main defense of 
the prisoner— that at the time of the homicide he was 
not aware of the official character of the deceased. 

In Wharton on Homicide (2d Ed.), section 403, it is 
said: 

'^Where an officer or his assistant is killed in the 
resistance of an arrest, it is a material inquiry, in de- 
termining the criminality and degree of the homicide, 
whether the party resisting arrest had knowledge or no- 
tice of the official character of the officer and of his 
purpose to exercise official authority. If there is no 
such knowledge or notice, the homicide cannot be more 
than manslaughter, unless the resistance was in enorm- 
ous disproportion to the threatened injury. And where 
one kills an officer attempting to arrest him, if there is 
nothing from which the official character of the officer 
can be inferred, the measure of his offense descends from 
murder to manslaughter. And this is the rule, though 

119 Tenn.— 38 



594 TENNESSEE REPOBTS. [119 Tenn. 

Hurd ▼. State. 

the officer had power to make the arrest without a war- 
rant, where he was required by statute, in executing the 
warranty to make known the authority. And the rule 
that it is murder to kill a human being without au- 
thority of law, when it is done in the commission of an 
act dangerous to others and evincing a depraved heart, 
regardless of human life, though without a premeditated 
design to effect the death of any particular person, is 
not applicable to a case in which the accused was sud- 
denly accosted by a crowd of armed men demanding his 
immediate surrender. So, if a person is placed in a posi- 
tion in wliich his life is imperiled by the act of another, 
having no notice of his official character, and the killing 
is apparently necessary to save his own life, it is homi- 
cide in self-defense, though the deceased was legally 
seeking to arrest him ; the accused not knowing, or hav- 
ing reasonable grounds to know, that he was an officer. 
But, though it is the duly of an officer to give notice 
of his intention to arrest before doing so, the person 
sought to be arrested may not lawfully resist or kill his 
assailant until all other means of peaceably avoiding the 
arrest have been exhausted. And the omission of the 
officer to exhibit his warrant or declare his authority 
can do no more than deprive him of the protection 
which the law affords him in the rightful discharge of 
his duty, and does not justify the person sought to be 
arrested in killing him, if the apparently illegal arrest 
can be otherwise resisted. And the question of the 
knowledge of the person sought to be arrested of the 



\ 



11 Gates] 8EPTBMBEB TBBM, 1907. 69& 

Hard y. State. 

official character of the person seeking to arrest him 
in such case is one of fact for the jury/' 

In a learned note to the case of Ready v. People, 66 
L. R. A., 353, 387, it is said: 

"In case of an unlawful arrest, or attempt to arrest, 
killing the person attempting it is, as a general rule, 
manslaughter only/ A person seeking unlawfully to 
arrest another is a trespasser, and the trespass is a 
ground of provocation sufficient to reduce the homicide 
of such person in resistance of the arrest from murder 
to manslaughter, though it is not so reduced unless the 
person sought to be arrested actually acted under the 
influence of hot blood induced by the provocation. And 
such an attempt unlawfully to arrest gives the person 
fought to be arrested a right to resist, even to the extent 
of killing his opponent, if such killing is necessary to 
save himself from serious bodily harm ; but the necessity 
must have been real and apparent. 

"The amount of force which he may use in self-de- 
fense, however, is that only which is necessary to pre^ 
vent the carrying out of the unlawful purpose. If exces- 
sive force is used in making resistance, the right of self- 
defense is eliminated, and killing by means calculated to 
cause death, with knowledge that the intent was only 
to arrest, is murder; and an unintentional killing in 
making such resistance, by means not calculated to 
cause death, is manslaughter.*' . 

We think these excerpts enunciate the correct rule 
of law applicable in such cases. It will be observed that 



596 TENNESSEE REPORTS. [119 Tenn. 

Hurd V. State. 

the trial judge wholly fails to instruct the jury that 
want of knowledge of the official character of the officer 
and his purpose to make the arrest might, if the other 
facts warranted, reduce the grade of homicide from mur- 
der to manslaughter, but, on the other hand, committed 
affirmative error in instructing the jury that the officer 
might make an arrest for a misdemeanor not committed 
in his presence, with or without a warrant, and it was an 
immaterial inquiry whether or not the deceased was in 
uniform. This error was intensified by the instruction 
given in the immediate context wherein he stated that : 
"The material inquiry was whether Policeman Mus- 
grove, at the time he was killed, was attempting to make 
a lawful arrest. If he was, and while in the discharge 
of his said duties, using no more force than was rea- 
sonably necessary, the defendant, Hurd, refused to be 
arrested, and killed Policeman Musgrove, then he would 
be guilty of murder.*' The court had already instructed 
the jury what constituted a lawful arrest, and that it 
was not necessary that the officer should have a war- 
rant to arrest for a misdemeanor not committed in his 
presence; and that charge was followed by the instruc- 
tion that if the officer, in effecting such an arrest, used 
no more force than was reasonably necessary, and the 
defendant killed him, then he would be guilty of murder. 
If the arrest was unlawful, then the grade of the homi- 
cide might be reduced from murder to manslaughter, de- 
pending on the other facts and circumstances of the 
case. This phase of the case was not presented to the 



11 Gates] SEPTEMBER TEEM, 1907. 597 

Hurd Y. State. 

jury in the charge of the court; but, on the other 
hand, the court committed affirmative error in charging 
that the arrest was lawful. 

For the error in the charge, the judgment is reversed, 
and the cause remanded. 



598 TENNESSEE BEPOBTS. [119 T^n. 

Johnson v. Insurance Co. 



J. L. Johnson v. Gontinsntal Insuhanob Oompany of 

New York. 

(Knowville. September Term, 1907.) 

1* parol KVJLDEirOE. Inadmissible to ^ary insnranee policy 
and premiom notes providing for nonliability on policy for 
nonpayment of premium. 
Where a fire insurance policy and the premium notes giyen there- 
for provide that the insurer shall not be liable for any loss 
or damage occurring while any premium remains past due 
and unpaid, parol erldence is inadmissible in an action on 
the policy to show a waiver of such provision made by the 
agent of the insured before and at the time of executing the 
notes and making the insurance contract. (Post, pp. 601-610.) 

Cases cited and approved: Richardson ▼. Thompson, 1 Humph., 
154; Campbell v. XJpshaw, 7 Humph., 185; Hancock v. Edwards, 

7 Humph., 349, 364; Blakemore v. Wood, 3 Sneed, 474; Ellis 
T. Hamilton, 4 Sneed, 514; Bryan v. Hunt, 4 Sneed, 544, 545, 
1^46, 547; Bridges v. Robinson, 2 Tenn. Chy., 728; Rice v. Steger, 

8 Tenn. Chy., 328; Bender v. Montgomery, 8 L«ea, 586, 593; Stew- 
art V. Insurance Co., 9 Lea, 104, 112; Klein y. Kern, 94 Tenn., 
87; Hines v. WlUcox, 98 Tenn., 158; Lewis v. Tumley, 97 
Tenn., 197; Lyons v. Stills, 97 Tenn., 514; Qulgley v. Shedd, 
104 Tenn., 560; Myers v. Taylor, 107 Tenn., 864; Turner v. 
Abbott, 116 Tenn., 718; Insurance Co. v. Mowry, 96 XJ. S., 544, 
and numerous cases from other States cited in the opinion 
on pages 608-610. 

9, INSU&AVOE. Evidence of agent's statement that he would 

take care of an installment policy for insured is inadmissible. 

In an action on a fire insurance policy for a loss resisted on 

the ground of forfeiture of the policy for nonpayment of the 



11 Gates] SEPTEMBEB TEBM, 1907. 699 

Johnson t. Insurance Ca 

premium, evidence of a statement made by the agent to the 
father of the insured, subsequent to the making of the con- 
tract, that he would take care of the policy for the insured, is 
Incompetent and inadmissible because not made in the course 
of the business or employment of the defendant, and because 
immaterial and irrelevant iPoat, pp. 610-612.) 

8. 8AMB. Same. Statements of agent of insurer insullieient to 
waire forfeitare of policy for nonpayment of premium. 
In an action on a fire insurance policy for a loss resisted on the 
ground of forfeiture of the policy for nonpayment of the prem- 
ium, statements made to the insured by the insurer's agent, 
through whom the policy was issued, that he was attending to 
the insurance for the insured, and if the house is burned that 
the insured would get his money, are insufficient to justify 
the insured in assuming that he would recover for a loss after 
he had failed to recover a premium according to his contract. 
{P09t, pp. 612, 618.) 

4. SAKB. Forfeiture for nonpayment of installment premium is 
not waived by indulgence as to previous installments, when 
notified to the contrary. 
Where the insured, before maturity of an installment of prem- 
ium, received notice (rom the insurer that on failure to pay 
the premium at maturity the policy would be suspended, and 
after maturity, a notice that because of the nonpayment the 
policy had been suspended and would remain so while the 
premium remained unpaid, he could not have been misled into 
believing that the policy was still in force, and not suspended 
because of a previous indulgence in being allowed to pay a 
premium after maturity. (Post, pp. 613-618.) 

0. SAME. No reinstatement of policy by payment of p|Mt due 
premium made after the insured property was burned. 
. There can be no reinstatement of a policy forfeited for non- 
payment of an installment premium by a payment made after 
the insured property had been destroyed by fire, since there 



600 TENNESSEE BEPOBTS. [119 Tenn. 

Johnson V. Insurance Co. 

could be nothing upon which the policy could operate. (Pott, p. 
618.) 

6. SAME. Policy forfeited for nonpayment of installment prem- 
ium is not revived by payment accepted without knowledge 
that property had been burned, when. 
A fire Insurance policy is not reviyed, after the insured property 
is burned, and after the forfeiture of the policy for the non- \ 

payment of an installment premium, by the insured's payment 
of such premium to a derk of the insurer's agent who had is- 
sued the policy or procured its issuance, without their knowl- 
edge that the property had been burned. (Post, pp. 618, 619.) 



FROM KNOX. 



Appeal from the Chancery Court of Knox County. — 
Joseph W. SInbbd, Chancellor. 

Thomas L. Cabty, for complainant 
Wbbb^ McClung & Baker, for defendant. 



Mr. JusnoB NeHj delivered the opinion of the Court. 

This action was brought in the chancery court of 
Knox*county on an insurance policy to recover f 1,600, 
the amount of insurance on the property described in 
the policy. There was a decree entered in favor of the 
complainant for the amount of the policy and interest, 



11 Gates] SEPTEMBEB TERM, 1907. 601 

Johnson t. Insurance Go. 

and from this an appeal was prayed and prosecuted to 
this court, and errors have here been assigned in be- 
half of the defendant. The complainant also assigned 
errors on the ground that the chancellor failed to allow 
to him the twenty-five per cent penalty provided by 
statute in cases where the defenses are frivolous. 

In order to properly understand the points made in 
the assignments of error filed by the defendant^ it is 
necessary to state that Blackburn Bros, acted as agents 
of the company in securing the policy; that at the time 
the application was made, and an installment note exe- 
cuted for the premium, certain statements were made 
by Bobert J. Blackburn, the member of the firm who 
conducted the matter, and these statements were ob- 
jected to on the hearing below as incompetent There 
were likewise statements of BladLbum proven by the 
wife of Mr. Johnson, and also by his father; the latter at 
a difFerent time. All of these were objected to in the 
court below, but the objections were overruled. We 
shall presently state the substance of tiiie evidence ob- 
jected to and the grounds of the objection. 

The installment note which was given for the prem- 
ium was in the following words